Jharkhand High Court
Mohan Mahto & Ors vs Union Of India & Ors on 3 February, 2014
Author: R. Banumathi
Bench: Chief Justice
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 1288 of 2012
1.Mohan Mahto
2.Shital Prasad
3.Amulya Chandra Mandal
4.Kali Pado Mahto @ Kapil Deo Mahato
5.Jhari Lai Saw
6.Rajan Ansari
7.Bahadur Hari
8.Smt. Arti Mandal @ Arti Devi ... ... Petitioners
Versus
The Union of India & others ... ... Respondents
CORAM : HON'BLE THE CHIEF JUSTICE
: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : M/s. Jai Prakash, Senior Advocate
Tanveer Kaur & Abhijeet Kr. Singh, Advocate
For the Respondents : Mr. Prabhash Kumar, CGC
C. A. V. on 03.02.2014 Pronounced on ...................
The present writ petition has been filed challenging order
dated 08.03.2011 in O. A. N. 200 of 2009(R) passed by the learned
Central Administrative Tribunal, Patna Bench, Circuit Court at
Ranchi whereby the Original Application filed by the applicants has
been dismissed.
2. The brief facts of the case are that, the petitioner nos. 1 to 5
are exemployees of Coal Mines Labour Welfare Organisation
(hereinafter referred to as 'CMLWO'), Government of India and
petitioner nos. 6 to 8 are legal heirs/successors of the exemployees
of CMLWO. On 30.09.1986, CMLWO was merged in Coal India
Limited and its employees were given an option for their
absorption in the Coal India Limited. The original applicants were
absorbed in Coal India Limited by order dated 01.10.1986. The
employees initially employed with CMLWO were entitled for Pro
rata pensionary benefits for the service rendered by them under
the Central Government subject to the minimum qualifying period
of service ,that is, 9 years 9 months. For calculation of total period
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of service rendered under the Central Government, half of the
period of continuous service rendered without break, on monthly
paid contingent basis, prior to their absorption in Coal India
Limited, was to be counted for grant of Prorata pensionary
benefits. Thus, the original applicants were also entitled for Pro
rata pensionary benefits on account of their services in CMLWO
prior to their absorption in the Coal India Limited. Some of the
present petitioners along with others moved the Central
Administrative Tribunal, Patna in O.A. No. 39 of 2004 seeking a
direction upon the respondents to grant Prorata pensionary
benefits to them. The said Original Application was disposed of by
order dated 19.02.2004 with a direction to the respondents to
verify the claim of the applicants and to grant the same, if they
were entitled. The claim of those persons were rejected vide order
dated 20.09.2004. The said order was challenged by 13 persons
including the present petitioners in O. A. No. 83 of 2005 which was
disposed of by order dated 17.02.2006. The claim raised by
5 persons in O. A. No. 83 of 2005 was allowed by the learned
Central Administrative Tribunal. However, the case of the present
petitioners who were the remaining applicants in O. A. No. 83 of
2005 was remanded to the competent authority for verification of
their total period of service for the purpose of grant of Prorata
pensionary benefits. Since the order passed in O. A. No. 83 of
2005 was not complied with, the petitioners filed a contempt
application being CCPA No. 8 of 2007. The respondents also
preferred review application being R. A. No. 8 of 2006 before the
learned Central Administrative Tribunal however, the same was
dismissed. The order passed by the learned Central Administrative
Tribunal in O. A. No. 83 of 2005 was challenged before this Court
in W. P. (S) No. 762 of 2008 and the same was dismissed by order
dated 09.07.2008, thereafter, the respondents moved the Hon'ble
Supreme Court in Special Leave Petition(C) No. ......../2008 (CC
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No. 10101 of 2008). By order dated 04.08.2008, the Special Leave
Petition preferred by the respondents was also dismissed.
Thereafter, the respondents made payments to the applicant nos. 1
to 5 of O. A. No. 83 of 2005 whose claims were allowed by order
dated 17.02.2006. However, with respect to the present
petitioners, the respondent no. 2 passed order dated 13.07.2009
rejecting the claim of the original applicants on the ground that
there was no record of their engagement on musterroll.
Thereafter, all the petitioners except petitioner no. 7 who is the
husband of the applicant no. 7 in O. A. No. 200 of 2009 (R)
moved the learned Central Administrative Tribunal, Patna
challenging order dated 13.07.2009. Since, O. A. No. 200 of 2009
(R) has also been dismissed by order dated 08.03.2011, the
originalapplicants have approached this Court by filing the present
writ petition.
3. Heard the learned counsel for the parties and perused the
materials on record.
4. A perusal of the materials on record indicates that by order
dated 13.07.2009, the case of the present petitioners was decided
by the respondent no. 2. The respondent no. 2 in his order has
referred to communication dated 10.03.1986 of the Department of
Personal and Training which provided counting of half of the
service as contingent employee for the purpose of terminal gratuity
as provided under CCS (TS) Rules, 1965. It has further been
noticed that Rule 14 of the CCS (TS) Rules provides as under:
● "Service paid from contingency should have been in a job
involving whole time employment (and not part time for a
portion of a day.)
● Service paid from contingencies would be in a type of work
or job for which regular posts could have been sanctioned
e.g. mails, chowkidar, khalasis etc.
● The services should have been one for which the payment is
made either on the monthly or daily rated computed and
paid on monthly basis and which though not analogous to
the regular scale of pay to those being paid for similar jobs
being performed by staffs in regular establishments.
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● The service paid from contingencies should have been
continuous and followed by absorption in regular
employment without a break.
● Subject to the above conditions being fulfilled, the
weightage for past service paid from contingencies will be
limited to the period after 1st January 1961 for which
authentic records of service may be available."
5. The respondent no. 2 proceeded to examine the case of the
petitioners in the light of the aforesaid criteria and found that the
petitioner no. 1 was appointed on the basis of Pump Khalasi on
08.06.1981and he rendered 5 years, 3 months and 23 days in CMLWO before his absorption in Coal India Limited. With respect to engagement of the petitioner no. 1 on musterroll, the respondent no. 2 has recorded as under:
"As regards muster roll period there is no record of his having rendered service as such there is no reference of his working as contingent worker in his Central Government service book which is seen/signed by the applicant namely Sri Mohan Mahato at the time of opening of service book.
Since, the applicant namely Sri Mohan Mahato did not put in regular and continuous service of at least 9 years 9 months prior to her oping for service conditions and absorptions in the Coal India Ltd., his claim is rejected and he is not entitled for prorata pensionary benefits as well as Central Govt. Family Pension."
6. Identical orders have been passed with respect to other petitioners also. The learned Central Administrative Tribunal also has recorded that in the servicebook of the applicant which was opened at the time of regularisation, there is no endorsement of their service as contingent paid workers prior to their regularisation. It is admitted case that by orders dated 23.06.1981 and 30.06.1981, the petitioners were appointed on regular basis in CMLWO. The said order clearly indicates that the petitioners were working as casual worker prior to their absorption in CMLWO. This document has not been considered either by the respondent no. 2 or by the learned Central Administrative Tribunal while 5 rejecting the claim raised on behalf of the applicants.
7. The learned Central Administrative Tribunal held that, in case of applicant nos. 1 to 5 in O. A. No. 83 of 2005, there was an endorsement to the effect that, "the details have been checked from the original certificates issued by the authorities and this is in order", however, in case of the present petitioners since no such report was there, the case of the present petitioners was remanded by order dated 17.02.2006. The learned Central Administrative Tribunal has thus concluded that the certificates issued by the concerned authorities were not the only documents which were taken into consideration by the learned Tribunal while allowing the claim of the applicant nos. 1 to 5 in O. A. No. 83 of 2005. The learned Tribunal has dismissed the Original Application only on the ground that no other document in support of their claim has been produced by the present petitioners.
8. Mr. Jai Prakash, the learned senior counsel appearing for the petitioners contended that the respondent no. 2 while rejecting the claim of the petitioners by order dated 13.07.2009 has failed to consider the certificates issued to the petitioners by the Assistant Engineer (Headquarters), CMLWO. The learned counsel has further submitted that the orders of regularisation dated 23.06.1981 and 30.06.1981 of the petitioners would indicate that they were working as contingent workers however, the same has not been considered by the respondent no. 2. The learned counsel has thus, submitted that in spite of specific direction issued in O. A. No. 83 of 2005, the respondentauthority has failed to consider the claim of the petitioners in right perspective and the learned Tribunal has also erred in dismissing the Original Application.
9. Mr. Prabhash Kumar, the learned counsel appearing for the respondents has supported the impugned order and contended that since there is no endorsement in the service book of the petitioners to the effect that they were working as contingent workers prior to 6 their absorption in CMLWO, the claim raised by the petitioners only on the basis of alleged certificates issued by the Assistant Engineer has rightly been held not tenable. Relying on the stand taken in the Review Application No. 8 of 2006, a copy of which has been filed along with the present writ petition, Mr. Prabhash Kumar, the learned counsel appearing for the respondents has submitted that the respondent no. 2 has rightly refused to consider the certificates submitted by the petitioners.
10. From the facts of the case, it is clear that the case of the present petitioners was remanded to the respondentauthority for taking a fresh decision. The order passed in O. A. No. 83 of 2005 was challenged in W. P. (S) No. 762 of 2008 however, the writ petition was dismissed by order dated 09.07.2008. The said order has become final. From the order dated 13.07.2009 passed by the respondent no. 2 it is apparent that the respondent no. 2 has not taken into consideration the previous service of the petitioners with CMLWO whereas, the fact that the petitioners were working with CMLWO as contingent workers is not denied. The order of absorption of the petitioners in CMLWO itself makes it apparent that in recognition of their services, the petitioners were absorbed in the service of CMLWO. Further, it does not appear from the order dated 13.07.2009 passed by the respondent no. 2 that he has made any effort to verify the basis or genuineness of the certificates issued by the Junior Engineer (Headquarters), CMLWO to the petitioners. The respondents have reiterated the stand in the present proceeding which they had already taken in the previous proceeding. Merely because there is no endorsement in the service book of the petitioners that they were working on monthly paid contingent basis prior to their absorption in CMLWO, the claim raised by the petitioners has been disbelieved by the respondent no. 2. The learned Central Administrative Tribunal has also fallen in error while accepting the stand taken by the 7 respondents. The learned Tribunal has failed to examine the correctness of order dated 13.07.2009 passed by the respondent no. 2, inasmuch as, the admitted fact that the appellants were working as contingent workers in CMLWO prior to their absorption has not been considered by the respondent no. 2. The learned Tribunal further fell in error in observing that no document has been produced by the applicants. In earlier proceeding, a specific direction was issued to the respondents to verify the claim of the applicants based on the certificates issued by the Assistant Engineer (Headquarters), CMLWO and therefore, the respondents were required to plead and prove by producing some evidence for not believing the certificates issued by the said authority. Merely because the present petitioners could not produce any document in support of their claim, their claim could not have been rejected particularly, in view of the orders dated 23.06.1981 and 30.06.1981 by which the petitioners were absorbed in the service of CMLWO.
11. We find sufficient grounds for interfering with the impugned order dated 08.03.2011 and accordingly, the impugned order dated 08.03.2011 is set aside. The matter is remitted back to the respondent no. 2 for considering the claim of the petitioners afresh.
(R. Banumathi, C.J.) (Shree Chandrashekhar, J.) Jharkhand High Court at Ranchi Dated, .....th day of February, 2014 R. Shekhar /AFR/Cp 2