Central Administrative Tribunal - Delhi
Smt. Bhagwati Devi, W/O Late Shri Shukh ... vs Union Of India (Uoi) Through The General ... on 13 October, 2006
ORDER Mukesh Kumar Gupta, Member (J)
1. Whether widow of casual labourer with temporary status, died in harness is entitled to family pension under the provisions of Railway Services (Pension) Rules, 1993?, is the common question raised in these two applications.
2. For sake of brevity, facts have been noticed from OA No. 1722/2005. Admitted facts are that applicant husband deceased Sukhram was appointed as casual labourer & granted temporary status w.e.f. 03.7.1987, died on 23.9.1989. His provident fund contribution was paid to her on 06.2.1990. She was also accorded compassionate appointment on 06.3.1995. Thereafter she made several representations for grant of pension & pensionary benefits but no action had been taken thereon. It is stated that similarly situated persons namely Shankutla Devi filed OA No. 2550/2003 before this Tribunal, which was disposed of on 22.10.2003 with direction to respondents to pass reasoned and speaking order. Later respondents accorded her retirement benefits & family pension in respect of her late husband. Similarly, other officials like applicant herein were also allowed same benefits overlooking her claim. This action of respondents is illegal, arbitrary and discrimination besides malafide. Therefore it was prayed that she is entitled to relief, as prayed for.
3. In support of aforesaid contentions Shri B.S. Mainee, learned Counsel relied upon following judgments:
(i) 1994 (3) SLJ CAT 523 Smt. Nehni Bai v. Union of India
(ii) 2003 (2) SLJ 271 Smt. Vallam Badia v. Union of India (Ahmedabad)
(iii) 2004 (3) ATJ 42 Smt. Santosh v. ICAR and Ors. (Jodhpur)
(iv) 2006 (2) ATJ 1 Rukhiben Rupa Bhai v. UOI and Ors. (Gujarat High Court)
(v) 2002 (1) ATJ 81 Latifan v. UOI and Ors. (PB-DB)
(vi) 2005 (2) ATJ 458 Smt. Jotsana Bala Manna v. UOI (Calcutta)
(vii) 2004 (3) ATJ 63 Kazori Devi v. UOI (SB) (Jaipur)
(viii) 2006 (2) ATJ 260 Anita Devi v. Union of India (PB-SB)
(ix) 1996 (1) SLJ 116 (SC) Ram Kumar and Ors. v. Union of India and Ors.
(x) Order dated 27.4.2000 in OA 1804/1996 (All.) Kamlesh Kumari v. UOI as upheld by Hon'ble High Court as well as Hon'ble Supreme Court on 22.3.2001 & 08.10.2001 respectively.
(xi) Rajeshwari Devi v. Union of India ATJ 2006 (2) 307
4. Shri Mainee, learned Counsel contended that judgment of Nehni Bai (supra) had been upheld by the Hon'ble Supreme Court dismissing UOI's SLP & was implemented as reflected under para-11 of Smt. Vallam Badia's judgment. The primary question considered under Vallam Badia had been as to whether the widow of casual labourer who was granted temporary status as per rules in force & medically examined as well as completed more than one year's service was entitled for grant of family pension & other retiral benefits in case of death of said temporary status casual labourer in the Railways. Strong reliance was placed on the observation made vide para-5 under Nehni Bai, as also reproduced in Vallam Badia, to contend that 'family pension' & 'pension' are two different matters independent of each other. The said judgment of Nehni Bai had noticed Rules 2311(3)(b) & 2511 of Indian Railway Establishment Manual. The earlier sub-paragraph 3(b) provides that widow of a temporary railway servant is entitled for pension if her husband had rendered qualifying service exceeding one year.
5. Strong reliance was also placed on Ram Kumar v. Union of India [supra] 1996 (1) SLJ 116 (SC), (hereinafter described as Ram Kumar-II) to contend that temporary employee is entitled to pension. Similarly great emphasis was laid on Rukhiben Rupa Bhai reported in 2006 (2) ATJ 1 [Gujarat High Court].
6. Respondents on other hand strongly refuted the claim laid and contentions raised by applicants. It was stated that applicants were not eligible for & entitled to grant of family pension as per rules. Under Rule 75 of Railway Services (Pension) Rules, 1993 (hereinafter referred as 'the Rules'), family pension is admissible to widow of a 'railway servant'. Unscreened casual labourer with temporary status does not fall within the definition of "railway servants", defined under Section 3(23) of the aforesaid Rules. Similarly, unscreened casual labourer with temporary status does not fall within the definition of "temporary railway servant" in terms of para-1501 of IREM Vol. I which specifically states that temporary railway servant does not include casual labourer including casual labourer with temporary status. Shri R.L. Dhawan, learned Counsel appearing for respondents placed reliance on following judgments:
Order dated 30.7.1996 of the Hon'ble Supreme Court in Union of India v. Sukanti and Anr.
Union of India v. Rabia Bikaner JT 1997 (6) SC 95 Smt. Rasapalli Komararmma v. UOI and Ors. 2001 (3) ATJ 347 Somoti Dai v. Union of India 2002 (2) ATJ 318 Ram Kumar and Ors. v. Union of India and Ors. 1996 (1) SLJ 116 (SC) Order dated 26.9.2005 in OA No. 1257/2004 Smt. Urmila Devi v. UOI 2000 (5) SCC 488 Arnit Das v. State of Bihar Geeta Rani Santra v. Union of India dated 20.6.1997, CAT FB Judgments 1997 - 2001 page 295.
7. Before proceeding on merits and considering rival contentions of parties, it would be expedient to notice certain definitions like railway servant, temporary railway servant and persons who are eligible for pension under the Rules.
3. Definition (23) '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 the 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.
Para-2511 of IREM Vo.-II 2511. Notwithstanding anything contained in the rules relating to the submission of petitions by railway servants, representations from recognized associations whether made orally by deputation, or presented in writing may be received by Government officers, subject to the observance of Rule 2506 and to such further restrictions as may be imposed by a department of Government in respect of representations which raise no question of common interest to the class represented by the association.
8. Basic question, which needs to be considered, is whether applicant in OA 1722/2005 is entitled to family pension. In given circumstances we may note once again at the cost of repetition that her husband was granted temporary status w.e.f. 03.7.1987 and died on 23.9.1989. He was neither screened for regularization nor the stage of medical examination arrived. It is not her contention that her deceased husband was denied regularization without any justification. Similarly, in OA 9/2006, applicant's husband was engaged as casual labourer and granted temporary status w.e.f. 01.1.1985, died on 07.11.1992. It is not her case that deceased Ram Narain was screened for regularization or medically examined.
9. First & foremost reliance placed by applicants was on Vallam Badia wherein following Nehni Bai's judgment, claim was allowed, holding that Ram Kumar-I judgment AIR 1988 SC 390 : 1989 (1) SLJ 102 (SC) hereinafter referred as 'Ram Kumar-I' "has already been superseded by Full Bench judgment in review of the very case itself by three Judges" Bench of Hon'ble Supreme Court in Ram Kumar and Ors. v. Union of India and Ors. reported in 1996 (1) AISLJ 116. (hereinafter referred as 'Ram Kumar-II') Reliance placed by respondents on Union of India and Ors. v. Rabia Bikaner and Ors. JT 1997 (6) SC 95 : 1997 SCC (L & S) 1524 : 1998 (1) SLJ 181 (SC) was held to be per incuriam. Vide para-13 of Vallam Badia (supra), it was observed that:
now examining from the other angle the judgment of the Hon'ble Supreme Court in Misc. application of Ram Kumar v. Union of India 1996 (1) SLJ 116, by three judges, It has been said that the correct law was not brought to the notice of Supreme Court while deciding the earlier case of Ram Kumar i.e. AIR 1988 SC 390. In that view of the matter earlier judgment in Ram Kumar itself become per incurium and in addition that it is stood superceeded and the judgment in Rabia's case it has been passed solely relying on the earlier Ram Kumar's case which could be considered as per incurium since the correct position of law and the rule itself has not been made available to the Hon'ble Supreme Court. A judgment is law only on the points raised and decided and once the correct material rule itself is not made available to the particular Court the judgment could only be considered as per incurium and could not be said to be a judgment in rem so the same would not be made available to other cases.
10. Claims of S/Smt. Santosh, Rajeshwari Devi, Jotsana Bala Manna & Kazori Devi (supra) were allowed following the judgment of Smt. Vallam Badia (supra). Similarly, Latifan (supra) was allowed in peculiar circumstances where her deceased husband was appointed as causal labourer on 12.2.1969 and granting temporary status had been screened on 19.3.1980 and expired on 06.2.1990. Anita Devi (supra) also followed Vallam Badia & earlier judgments and allowed her claim. Similarly, Kamlesh Kumari's case decided by Single Bench at Allahabad of this Tribunal also followed judgments rendered in Ram Kumar-II and Nehni Bai, upheld by the Hon'ble High Court & Hon'ble Supreme Court dismissing SLP in limine. We may note that it is well settled accepted that an order rejecting a special leave petition at the threshold without detailed reasons does not constitute any declaration of law or constitute a binding precedent. see 2004 SCC (L & S) 12 UOI v. Jaipal singh
11. Respondents, on the other hand, heavily relied upon judgment of Rabia Bikaner (supra) as well as Single Bench judgment of this Tribunal dated 26.9.2005 in OA 1257/2004 Urmila Devi v. Union of India wherein most of the judgments cited herein had been analyzed and a view was taken that a person holding temporary status who died without being regularized is not entitled to family pension. Said judgment also noticed Ram Kumar-II judgment. Therefore, we are required to analyze all these judgments being the fact that there are conflicting decisions on said issue. In Ram Kumar-I (supra), grievance of petitioners had been that notwithstanding the fact that each of them had put in continuance service for quite a long period, Railway Administration had not treated them as temporary servants and applied discriminatory rates of wages. They had sought direction to treat them at par with maintenance workers and to declare that they were entitled to equal pay for equal work and asked for their absorption in the regular cadre in the permanent category. From perusal of said judgment of Ram Kumar-I, it is noticed that they were engaged on terms of casual labourer for period varying between 10-16 years in the construction department of the signal unit in the Northern Railway. Sixteen out of 42 petitioners had already been empanelled and eleven of them seem to had joined while seventeen were continuing on temporary status. In such circumstances, Hon'ble Court observed that : "we expect the Railway Administration to take prompt steps to screen such of the petitioners who had yet not been tested for the purpose of regularizing their services." Inderpal Yadav's judgment [1985 (2) SCC 648] had also been noticed therein, whereby the Court directed the Railway Administration to frame a scheme for absorption. On perusal of Inderpal Yadav's case (supra) we may note that in Para-1, the Hon'ble Court noticed that : "in quick succession, 48 writ petitions and 32 petitions for special leave flooded this Court. In each writ petition/Special Leave Petition, the grievance was that even though the workmen styled as 'project casual labour' had put in continuous service for years on end to wit ranging from 1974 till 1983, yet their services were terminated with impunity under the specious plea that the project on which they were employed has been wound up on its completion and their services were no more needed." In our considered view, said judgment of Inderpal Yadav has to be viewed only in the context and not otherwise. It is no doubt true that the Hon'ble Court therein approved a scheme prepared by the Railway Ministry, which was applicable to "casual labourers on projects who were in service as on 01.1.1984." Certain paras of said scheme were modified and consequent rescheduling of absorption was indicated i.e. 01.1.1981 onward.
12. Later, a Civil Miscellaneous Petition No. 31378/98 has been filed seeking regularization. Out of 890 persons, 504 were adjusted against posts newly created and 488 out of 504 had been regularized. Applicants therein i.e. Ram Kumar-II were interested only in about 12 persons who had not been regularized. Relying upon Railway Board instructions dated 20.1.1985 it was contended that since these twelve persons have already worked for more than five years and have become entitled for regularization 'in class-III post', the matter was referred to the Railway Board to consider their claim for regularization against 'class-III post' subject to their satisfying requirement laid in the Board instructions. The further aspect, which had been mentioned, was in relation to entitlement to pension and the Hon'ble Court issued direction to Railway Board 'to consider' the claim of temporary employees who were before it, without adjudicating the issue of grant/entitlement of pension. It would be expedient to notice the text of said order in Ram Kumar-II, which reads thus:
The only other question to be seen is with regard to entitlement of pension. It appears that the Board on the basis of the Fourth Pay Commission report has provided for pension at the time of superannuation even to those who are temporary employees. In paragraph 12 of our order on the basis of material then placed before us, we had taken the view that temporary employees were not entitled to pension on superannuation. We direct the Railway Board to consider the claim of temporary employees who are before us for pension at the time of superannuation or otherwise in view of the fact that the Board has taken its own decision differently. Obviously appropriate material had not been placed before this Court when the submission of Ms. Ramaswamy for Railway administration was accepted in the order. The decision is beneficial to the employees and we direct that the Board's decision may be implemented.
13. A perusal of above order and direction, in our considered view, does not record any definite finding about the entitlement of pension to casual labour with temporary status, as it merely directed the respondents 'to consider' their claim regarding pension at the time of superannuation and that too in respect of 'temporary employees.' In the present case we are not concerned with the category of 'temporary employees', as it is not the case of both applicants in these proceedings that their husbands were 'temporary employees'. The term 'temporary employee' is different than the term "casual labourer holding temporary status."
14. On the other hand respondents placed reliance on various judgments and contended that applicants are not entitled to any relief in the given facts and circumstances. Strong reliance placed on Rabia Bikaner (supra) established that a specific question of law had been adjudicated therein namely:
Whether the widow of a casual labourer in Railway Establishment, who died after putting the 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?
15. Perusal of said judgment also indicates that Ram Kumar-I and Prabhavati Devi v. Union of India 1996 (7) SCC 27 were also considered therein. In Prabhavati Devi, the facts were that from the year 1981 to April 27, 1993, the husband of applicant had worked as causal worker and obtained the status of 'substitutes' who were working, as defined under Rule 2315 of Indian Railway Establishment Manual, in a regular establishment on a regular scale of pay and allowances applicable to those posts in which they were employed. Obviously he was screened and was also appointed to the temporary post. He was treated as substitute and appointed to the vacancy when regular candidates were on leave etc. Under these circumstances, it was held that widow of such employee is entitled to the benefit of family pension. The ratio of said judgment was held to be 'inapplicable' to the case of Rabia Bikaner; as per para-4 of said judgment. In Rabia Bikaner, appeal of Union of India was allowed and OA filed by Rabia Bikaner was dismissed. Union of India v. Sukanti (supra) was also noticed & relied upon in Rabia Bikaner. In Sukanti, the Hon'ble Court specifically concluded that "no retiral benefits are available to casual labourer", as casual labouer had not been regularized in service and the impugned judgment of Tribunal, contrary to said decision, was set aside.
16. Rabia Bikaner, in our considered view, cannot be said to be a decision, which is inapplicable, as projected by applicants on the ground that Sukanti, Rabia Bikaner and Prabhavati Devi judgments were rendered by Hon'ble two Judges Bench, while Ram Kumar-II was a judgment of Hon'ble three Judges. However we may note that Ram Kumar-II was not a judgment but merely an order passed in Civil Misc. Petition, after the main case was diposed earlier. In such circumstances, it cannot be said that any authoritative law had been laid down in Ram Kumar-II about the entitlement of pension to casual labour with temporary status. We may also note that Ram Kumar-II was an order dated 06.9.1990, though reported in the year 1996. Three judgments namely Rabia Bikaner, Sukanti & Prabhadevi (supra) were rendered after detailed analysis of rules and law on said subject. Unfortunately the said judgments, wherein specific issue & question raised as well as decided, have been consistently ignored by various Benches of the Tribunal as noticed hereinabove on the specious plea that Ram Kumar-II, being an order of 3 Hon'ble Judges was binding precedent & had not been taken into consideration in Rabia Bikaner. We are unable to subscribe to this view of the matter for more than one reason.
17. We may also note that a Full Bench of this Tribunal at Calcutta in Gita Rani Santra v. Union of India and Ors. AT FBJ 1997-2001 page 295 considered the following issue:
(i) Whether despite non-regularization of a casual labour with temporary status against a regular post, who has been working continuously for a long period, shall be deemed to have been regularized on the date of death of such an employee in harness irrespective of availability of any post, for the purpose of sanction of family pension to his family or shall be deemed to have been regularized on the date of attainment of normal age of superannuation for the purpose of sanction of normal pension in his favour in the context of provision of Rule 31 of the Railway Services (Pension) Rules, 1993 read with provision of para 2005 of IREM, Vol. II, 1990 Edn. Or provisions of Rules 101, 102 and 409(ii) of Manual of Railway Pension Rules, 1950;
(ii) If the answer to the above question is in the affirmative, what should be the minimum period of continuous service of a casual labour with temporary status prior to the death of such employee or superannuation as the case may be, for the purpose of deemed regularization?
18. Aforesaid Full Bench judgment noticed various judgments including Ram Kumar-I, Prabhavati Devi and other judgments and authoritatively concluded as follows:
14. The question is now what should be the minimum duration for such service rendered by a temporary railway servant for getting family pension by the wife/widow on the basis of deemed provision for regularization. Considering the fact that a regular Railway servant can claim pension after rendering 10 years of qualifying service and that the service rendered by the casual labour with temporary status is counted only to the extent of 50% for computation of qualifying service, we consider that 20 years period is a reasonable one.
15. In view of the above analysis we answer the reference as below:
Yes 20 years The case may be remanded to the respective referring Bench for decision in the light of the principle enunciated above.
19. In Arnit Das v. State of Bihar 2000 (5) SCC 488, it was observed that a decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law to have a binding effect as is contemplated by Article 141.
20. Chapter XV of IREM Vo.-I (1989 Edition) deals with terms & conditions applicable to Railway servants and Substitutes in temporary service. Para-1501 deals with temporary railway servants and reads as follows:
Para 1501 - Temporary Railway Servant Definition - A temporary railway servant means a railway servant without a lien on a permanent post on Railways or any other administration or office under the Railway Board. The term does not include 'casual labour' including casual labour with temporary status, a contract or part-time labour or an apprentice.
21. Similarly definition of 'Substitutes' is provided under Para-1512 which reads as follows:
1512. Definition - 'Substitutes' are persons engaged in Indian Railway Establishments on regular scales of pay and allowances applicable to posts against which they are employed. These posts fall vacant on account of a railway servant being on leave or due to non-availability of permanent or temporary railway servants and which cannot be kept vacant.
22. Para-1513 enumerates the circumstances under which Substitutes can be recruited. Similarly, right and privileges admissible to Substitutes are codified under Para-1515. The "NOTE" under said para states that:
the conferment of temporary status on the Substitutes on completion of four months continuous service will not entitle them to automatic absorption/appointment to railway service unless they are in turn for position in select lists and/or they are selected in the approved manner for appointment to regular railway posts.
23. Railway services (Pension) Rules, 1993 were published vide Gazette of India dated 03.12.1993 vide S.O. 930(E) in exercise of powers conferred to Proviso 309 of the Constitution. Rule 2 provides application of said rules and reads as follows:
2. Application Save as otherwise expressly provided in these rules, these rules shall apply to the following railway servants, namely:
any Group 'D' railway servant whose service was pensionable before the introduction of Pension System for Railway Servants on the 16th day of November 1957;
any non-pensionable railway servants who was in service on the 16th day of November, 1957 and who elected to be governed by these rules.
any non-pensionable railway servant who was in service on the 1st day of January, 1986 and did not opt to be governed by the State Railway Provident Fund (Contributory) Rules; and any person entering a railway service on or after the 16th November, 1957, except a person who is appointed on contract or re-employed after superannuation or whose terms of appointment specifically provide to the contrary.
24. Definition of 'Railway servant', as noticed hereinabove (para 7) is detailed under Rule 3(23). Similarly, definition of Substitutes is available under Rule 3(26), which read as follows:
3(26) 'Substitutes' means a person engaged against a regular, permanent or temporary post by reason of absence on leave or otherwise of a permanent or temporary railway servant and such substitute shall not be deemed to be a railway servant unless he is absorbed in the regular railway service.
25. Chapter II of aforesaid Rules deals with General Conditions. Title of Rule 6 is "Regulation of claims to pension or family pension". According to Sub-rule (1), claim to pension or family pension is regulated by the provisions of these rules at the time when a Railway servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be. Sub-rule (2) provides 'the day', on which such event takes, is treated to be as his last working day. Rule 18 deals with "Pensionary, terminal or death benefits to temporary railway servants". Chapter III deals with "Qualifying Service". Rule 20 deals with "Commencement of qualifying service" i.e. the date when a Railway servant takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Rules 31 & 32 under same Chapter deal with "Counting of service paid from contingencies" and "Counting of service of a substitute" respectively. Chapter V deals with "Classes of Pensions and Conditions governing their grant". Rule 51 deals with 'Superannuation Pension', while Rule 55 is concerned with 'Invalid Pension'. Rule 75 falling under same Chapter deals with "Family Pension Scheme for railway servants, 1964". It would be appropriate to notice the relevant extracts of the said Rule 75(1) & (2), which reads thus-
(1) The provisions of this rule shall apply:
to a railway servant entering service in a pensionable establishment on or after the Ist January, 1964; and to a railway servant who was in service on the 31st December, 1963 and came to be governed by the provisions of the Family Pension the Scheme for railway employees, 1964, contained in Railway Board's letter No. F(P) 63 PN-1/40, dated the 2nd January, 1964 as in force immediately before the commencement of these rules.
NOTE : The provisions of this rule has also been extended from 22nd September, 1977, to railway servants on pensionable establishments who retried or died before the 31st December, 1963 and also to those who were alive on that date but had opted out of the 1964 Scheme.
(2) Without prejudice to the provisions contained in Sub-rule (3), where a railway servant dies:
after completion of one year of continuous service, or before completion of one year of continuous service provided the deceased railway servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for railway service;
after retirement from service and was on the date of death in receipt of pension, or compassionate allowance, referred to in Chapter V, other than the pension referred to in Rule 53:
the family of the deceased shall be entitled to a family pension 1964 (hereinafter in this rule referred to as family pension) the amount of which shall be determined in accordance with the Table below
26. The whole scheme of aforesaid Rules would show that applicability of said rules is dependant on a person being a 'Railway servant'. A cumulative reading of aforesaid rules would lead to irresistible & inescapable conclusion that one becomes entitled to family pension or pension only when one has attained the status of a 'railway servant.' As already noticed hereinabove, railway servant is a member of railway service or holds a post under the administrative control of the Railway Board, which term "does not include casual labourer or persons lent from service or post which is not under the administrative control of the Railway Board." Similarly 'substitute' is a person who is engaged against a regular, permanent or temporary post by reason of absence on leave or otherwise of a permanent or temporary railway servant and such substitute shall not be deemed to be a railway servant unless he is absorbed in the regular railway service. In other words, there are various terms like 'casual labourer', 'casual labourer with temporary status', 'substitutes' and 'railway servant'. There is no quarrel to the fact that "casual labourer either with temporary status" or otherwise does not either hold a civil post or lien to the post. He has to be screened, when his term comes for absorption. The basic issue, which at this stage needs consideration, is whether a casual labour with temporary status becomes entitled to pension or family pension under the rules in vogue in Railways.
27. Shri B.S. Mainee, learned Counsel forcefully contended that Rukhiben Rupa Bhai (supra) has to be followed as the definition of Railway servant does not exclude the temporary railway servant from eligibility to draw pension as it excludes only casual labourers.
28. A perusal of the said judgment of Rukhiben would show that 5 cases were dealt with therein. Out of 5, in one case, viz. Special C.A. No. 15808 of 2003, the employee concerned was appointed as a substitute. Individual details of each case had been noticed under paras 5 - 13, & almost all of them worked for more than 15 years. Even in the capacity of a casual worker with temporary status, each one of them had rendered more than 10 years of service. How to construe and read the judgment was the subject matter before the Hon'ble Supreme Court on more than one occasion. A judgment should be understood in the light of fact of that case and no more should be read into it than what it actually says [1993 (2) SCC 368, 383]. Similarly in 1992 (4) SCC 363 at 385 & 386 it was held that the judgment must be read as a whole. A Constitution Bench in 2002 (3) SCC 533 Padma Sundara Rao dead and Ors. v. State of T.N. and Ors. observed as follows:
9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.
29. Further more, the Hon'ble Court also observed therein that : "it is well settled principle in law that the court cannot read anything into a statutory provision, which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. 'Statute should be construed, not as theorems of Euclid", Judge Learned Hand, said, "but words must be construed with some imagination of the purposes which lie behind them". Under para-15, it was held that:
15. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute.
In 2004 (6) Scale 232 : 2004 (6) SCC 186 Collector of Central Excise Calcutta v. Alnoori Tobacco Products and Anr. it was once again observed that : "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.' Following words of Lord Denning in the matter of applying precedents were also noticed under para 14, which read as under:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
* * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
In Union of India v. Elephantine Spinning and Weaving Company Ltd. and Ors. (2001) 4 SCC 139 it was held that:
The duties of the Judges is to expound and not to legislate is a fundamental rule. There is no doubt a marginal area in which the courts mould or creatively interpret legislation and they are thus finishers, refiners and polishers of legislation which comes to them in a state requiring in varying degrees of further processing See Corocraft Limited v. Pan American Airway Inc. WLR (1968) 2 All ER 1059 and State of Haryana v. Sampuran Singh (1975) 2 SCC 810. By no stretch of imagination a Judge is entitled to add something more than what is there in the statute by way of a supposed intention of the legislature. It is, therefore, a cardinal principle of construction of statutes that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.
Similarly, in 2000 (7) SCC 175 Pyare Lal and Ors. v. Mani Ram and Ors. it was held that what is clearly excluded in a statute cannot be included by applying the principles of stare-decisis. A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom.
30. What is ratio decidendi and precedent has been clearly elucidated in 1996 (6) SCC 44 Union of India and Ors. v. Dhanwanti Devi and Ors. which reads thus:
It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyze a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is no intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
31. Railway Services (Pension) Rules, 1993 is a substantive law. The term 'substantive law' has been defined as "substantive law, is that part of law which creates, defines and regulate rights in contrast to what is called adjective or remedial law which provides the method of enforcing rights." 2001 (2) SCC 721 Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Ors. v. N.C. Budharaj (Deceased) by LRS, and Ors.
32. We may note that in Raj Kumar-I, the Hon'ble Supreme Court vide Para-11 reproduced para 2511 of Indian Railway Establishment Manual, which reads as under:
11. Paragraph 2511, Indian Railway Establishment Manual, provides:
Casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Indian Railway Establishment Manual. The rights and privileges admissible to such labour also include the benefits of the Discipline and Appeal Rules. Their service, prior to the date of completion of six months' continuous service will not, however, count for any purposes like reckoning of retirement benefits, seniority etc. Such casual labourers will, also, be allowed to carry forward the leave at their credit to the new post on absorption in regulation service.
Such casual labour who acquire temporary status, will not, however, be brought on to the permanent establishment unless they are selected through regular Section Boards for class IV staff. They will have a prior claim over others to permanent recruitment and they will be considered for regular employment without having to go through employment exchanges. Such of them who join as casual labourers before attaining the age of 25 years may be allowed relaxation of the maximum age limit prescribed for Class IV posts to the extent of their total service which may be either continuous or in broken periods.
It is not necessary to create temporary posts to accommodate casual labourers who acquire temporary status for the conferment of attendant benefits like regular scales of pay, increments etc. Service prior to the absorption against a regular temporary/permanent post after requisite selection will, however, not constitute as qualifying service for pensionary benefits.
33. The aforesaid para has not been noticed on complete aspects by this Tribunal in Nehni Bai v. UOI (supra). Only Clause (a) had been noticed therein. On perusal of Para 3 of said judgment one gets an impression that the entire portion has been quoted from Ram Kumar-I, which is factually incorrect. In Nehni Bai what has been noticed under Para-3 reads as under:
3. We have considered the rival submissions made by the parties. In the case of Ram Kumar and Ors. v. Union of India and Ors. (supra), Hon'ble Supreme Court has considered only about the provisions of retiral pensionary benefits which are to be extended to the employee who has retired. It was not a case of a family pension at all. However, we will have to consider Paragraph 2511 of Indian Railway Establishment Manual, Clause (a) which reads as under:
Casual Labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Indian Railway Establishment Manual. The rights and privileges admissible to each labour also include the benefits of the Discipline and Appeal Rules. Their service, prior to the date of completion of six months continuous service will not, however, count for any purposes like reckoning of retirement benefits, seniority etc. Such casual labourers will, also, be allowed to carry forward the leave at their credit to the new post on absorption in regulation service.
The word 'all' as used in Clause (a) is very important for the purpose of interpreting the various provisions regarding the family pension. The word 'all' should be given a wider interpretation and it should be comprehensive to include all benefits extended under Chapter XXIII specifically or by implication. If there is no specific prohibition and if it can be interpreted for the benefit of an employee, the beneficial interpretation should be given to the legislation in this Welfare State. In Part IV of the Constitution, Article 37 directs that 'the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.' Article 38 of the Constitution directs the State to secure a social order for the promotion of welfare of the people. It further directs that the State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Article 41 directs that the State shall, within the limits of its economic capacity and development, make effective provision for security the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
34. A bare comparison of Ram Kumar-I vis-a-vis with para-3 of Nehni Bai would show that all aspects of para 2511 of IREM had not been noticed. The term "casual labourer who acquire temporary status" used under Paras (b) & (c) as noticed from Ram Kumar-I, definitely conveys that such service will not constitute a qualifying service for pensionary benefits. Moreover, as observed in Rabia Bikaner (supra), Prabhavati Devi would not be applicable as the husband of the appellant therein had acquired the status of 'substitute', which is distinctive and different than "casual worker with temporary status". 'Substitute' is certainly a better status than the "casual worker with temporary status". Substitute is appointed/engaged against the post falling vacant on account of Railway servant being on leave etc, 'which cannot be kept vacant', as reflected under the definition of said term. Casual worker with or without temporary status is not appointed against any identified or sanctioned strength. On the other hand, such employment remains of casual nature depending on the need & day to day requirement. Neither such casual labour is subjected to medical test nor his antecedents & character is verified before such engagement. The ratio laid down in Rabia Bikaner (supra), in our considered view, cannot be ignored or brushed aside merely on the ground that Ram Kumar-II had not been noticed therein. The said judgment of Rabia Bikaner (supra), in our considered view, being a law under Article 141 is binding precedent upon this Tribunal.
35. We may note with concern that some Benches of this Tribunal have made observations qua Hon'ble Supreme Court judgment as well as Coordinate Bench judgment of this Tribunal and termed it "per incuriam". Reference can be had to Vallam Badia as well as Anita Devi particularly para-13 and 31 respectively of the said judgments. Recently, the Hon'ble Supreme Court did not approve such practice in 2006 (6) SCC 522 Rapti Commission Agency v. State of UP and Ors. The Hon'ble Court had an occasion to deal with a situation where the High Court had commented upon the correctness of a judgment of Hon'ble Supreme Court, which aspect was dealt in the following manner:
7. x x x The High Court commented upon the correctness of the judgments observing that several larger Benches decisions were not considered. To say the least the High Court's approach is inappropriate. The decisions in Steel Authority case and Nathpa Jhakri case related to issues on which there appears to be no contrary view taken by any larger Bench. The High Court could not have sat in judgment over the correctness of the judgments of this Court. The High Court appears to have proceeded on the basis that this Court should have read down the provisions under consideration to uphold them. What is the basic fallacy in this approach is illuminatingly analysed in Minerva Mills Ltd. v. Union of India.
36. In our considered view, the ratio laid down hereinabove squarely apply to the facts of present case and the use of term "per incuriam" should have been eschewed. Employment of such language & term is not in good taste.
37. We may note that recently in a Constitution Bench Judgment i.e Secretary, State of Karnataka and Ors. v. Umadevi and Ors. 2006 (4) Scale 197, it has been held that public employment in a sovereign socialist secular democratic republic has to be as set down by the Constitution and the laws made thereunder. The Union, States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to proper appointment procedure i.e. Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It is time that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured employment through proper means, tends to defeat the very Constitutional scheme of public employment. When statutory rules are framed under Article 309 of the Constitution, which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed. Inspite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons in posts which are temporary, on daily wages as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure. It is not the role of the Courts to ignore, engage or approve appointments made or engagements given outside the Constitutional Scheme. Regular recruitment should be insisted upon. The cases directing regularizations have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect. Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly in terms of the constitutional scheme. While directing that appointments temporary or casual, be regularized or made permanent Courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. By doing so, it will be creating another mode of public employment, which is impermissible. The doctrine of legitimate expectation is not applicable.
38. The casual employment under the Railways is certainly not in tune with the constitutional scheme or rules made there under, rather it is in derogation of the rules as all appointments have to be made by the agencies prescribed under the rules framed under provisions of Article 309 of the Constitution of India. Casual employment in Railways is nothing but a back door entry. Acquisition of temporary status by casual labourer cannot put him on the pedestal of a temporary railway servant. Such casual employment is not against any identified or sanctioned post. In case of temporary appointment, there is always a sanctioned strength may be for a fixed tenure which is not the case when the person is engaged on casual basis.
39. The terms "casual labourer with temporary status" cannot at all be equated with or lifted to the pedestal of temporary railway servant. As we have already analyzed the Railway Services (Pension) Rules under which pension is available to a Railway servant, temporary railway servant, to substitute and invalid pension, but its provisions are not applicable to casual labourers with temporary status. "It is the duty of all courts of justice", said Lord Campbell, "to take care for the general good of the community, that hard cases do not make bad law" East India Company v. Odichurn Paul 7 Moo PC 85 : (1849) 5 MIA 43 (PC), p.69. We have already noticed hereinabove that the Judges are not entitled to add something more than what is there in the statute byway of supposed intention of the legislation. Services (Pension) Rules is a piece of subordinate legislation framed under proviso of Article 309 of the Constitution of India. The said term "Casual Labourer with temporary status" was already in existence prior to the year 1993, when the aforesaid rules were notified. If the intention of the authorities had been that such class or category is entitled to pension, nothing prevented them to include the said category or class under the said Rules.
40. In view of the discussion made hereinabove we are unable to persuade ourselves to concur with the view taken in various judgments relied including of Coordinate Benches of this Tribunal in Nehni Bai, Vallam Badia, Jotsana Bala Manna, Raj Devi, Smt. Santosh, Latifan, Kazori Devi, Anita Devi, Kamlesh Kumar and Rajeshwari Devi (supra). On the other hand, following the law laid down in Rabia Bikaner and Full Bench Judgment on Gita Rani Santra, we are inclined to hold that there is no merit in the claim laid in these applications as casual worker with temporary status is not entitled to pension under the provisions of Railway Services (Pension) Rules, 1993. Unless a person acquires the status of a 'railway servant' as defined under the aforesaid rules, the provisions of said rules remain inapplicable.
41. As there are conflicting decisions on the subject of entitlement to family pension to casual labourer with temporary status, rendered by different Coordinate Benches of this Tribunal, Single as well as Division Benches etc., position of law remaining confused, unsettled and rather twisted from time to time despite Full Bench Judgment in Gita Rani Santra, we are of the view that this issue needs to be adjudicated authoritatively, comprehensively & controversy must be resolved once for all, preferably by a Larger Bench of Five Members. We order accordingly. Let the papers be placed before the Hon'ble Chairman for constituting a Larger Bench to resolve the aforesaid controversy.