Central Administrative Tribunal - Ahmedabad
Smt. Vallam Badia vs Union Of India (Uoi) And Ors. on 21 June, 2002
Equivalent citations: 2003(2)SLJ271(CAT)
JUDGMENT J.K. Kaushik, Member (J)
1. Smt. Vallam Badia has filed this O.A. claiming the following reliefs:
"A. It may be declared that the applicant widow is entitled to the family pension from the date of death of her husband i.e., 2.6.1990 i.e., from the due date on account of death of her husband Shri Sursing Ramola, who was working as Gangman, with all the consequential benefits, arrears as due, directing the respondents to fix her family pension and pay her all the arrears with interest at the rate of 12% from the date of which was due to be paid to her.
AA. The deceased husband of applicant Shri Sursing Ramola be deemed to be regularised with effect from the date any junior to the deceased in seniority list i.e., after S. No. 895 and/or with effect from 25.4.89 the date on which deceased was transferred to open line for permanent absorption, as deemed fit.
B. Any other better relief/s as this Hon'ble Tribunal deem just and proper looking to the facts and circumstances of the case may please be awarded to the applicant.
C. Cost of this petition may please be awarded to the applicant from respondents.
2. The factual metrics of the case as brought out by the applicant in this O.A. are that the applicant is the widow of late Shri Sursing Ramola, who was employed on the post of Gangman under CPWI Sabarmati and expired on dated 2.6.90 while in service. The deceased husband of the applicant was initially engaged in Construction department on dated 30.1.1979. He was granted temporary status with elect from 1.1.85 in terms of order dated 18.11.1985 (Annexure A-1). The name of the deceased Government servant appears at Sr. No. 38 of the said order. The detailed service particulars of the applicant are also mentioned in the statement which is annxed to letter dated 19.3.1985 (Annexure A-3). He was given Provident Fund number and was subjected to medical examination which he had passed and he was fully eligible for absorption in Group D post. He was transferred to work in Survey and Construction department of Fulera. Thereafter he was directed to Rajkot division vide letter dated 25.4.1989.
3. In the last husband of applicant was employed under PW1 (M.G) Sabarmati where he expired on the date indicated above i.e., 2.6.90. It is the case of the applicant that her husband was due for regularisation long back but he could not be regularised since he was to move from one place to another in different project/department of Railways in Construction organisation. On the death of the said deceased Government servant Shri Sursing Ramola, the applicant has not been paid the provident fund, gratuity and family pension.
4. The O.A. has been filed on multiple grounds and it has been said, that the legal position in the matter settled by in a catina of judgments mentioned therein and widow of the casual labour who have attained one year service/after attaining the temporary Status the retiral dues have held to be admissible and the denial of the same not only to the rules but deprived the fundamental rights of the applicant. The judgment in Prabhavati Devi v. Union of India and Ors. 1996(1). SLJ 89 of the Hon'ble supreme Court and judgment of Jaipur Bench of the Tribunal in Smt. Nehni Bai v. Union of India and Ors., 1994(3) SLJ (CAT) 523, has been annexed along with the O.A. as Annexure A-5 and A-6 respectively. An applicant for condonation of delay has also been filed explaining the reason of the delay. The matter relates to the grant of family pension and pension matter is a recurring cause of action and law of limitation is not attracted, however, we find that there are sufficient and good reasons for condonation of delay and the MA is allowed and we proceed to decide the matter on merit.
5. The respondents filed a preliminary objection in the matter for which rejoinder were also filed by the applicant, thereafter the detailed counter reply has been filed on behalf of the applicant and it has been submitted that the applicant was granted temporary status while he was working in Rajkot division from where he was transferred and posted to Fulera and from Fulera he resumed duty at Sabarmati as casual labour. It is normal practice that provident fund subscription etc., are recovered from the person who get temporary status but the regularisation is held after the screening is over. It has also been submitted before 1991 no screening of the project casual labour was done and since the husband of the applicant had expired on 2.6.1990, the question of regularisation from back date does not arise. It is further the case of the respondents that the judgment which have been quoted are not applicable but they did not apply to other case as per the rules the family pension is applicable to the widow of a regular employee and not to an employee who was a temporary status since the husband of the applicant was not regularised or absorbed against the regular vacancy, there is no question of payment of any retiral dues including family pension. Thus no relief can be admissible to her. It has also been submitted that as regards the payment of terminal gratuity, she is not entitled for the same and hence the O.A. deserves to be dismissed with cost. The rejoinder has been filed on behalf of the applicant and a copy of judgment dated 22.1.96 passed by this Bench of the Tribunal in O.A. 262/90 has been furnished thereto. The respondents have filed a sub-rejoinder refuted the contention raised in the rejoinder. During the pendency of the case certain amendments were made to the O.A. and the same were incorporated as per the procedure in vogue.
6. We have heard the learned Counsel for both the parties and have carefully perused the records of this case. We have also gone through the various legal provisions and the law laid down by the various Benches of this Tribunal as well as by the Hon'ble Supreme Court in the matter.
7. The primary question for our examination and consideration in this case relates to as to whether the widow of casual labour who was granted temporary status as per the rules in force and who was medically examined as well as completed more than one year service is entitled for grant of family pension and other retiral benefits in case of death of the said temporary status casual labour in the Railways. The learned Counsel for the applicant has heavily placed reliance on the judgment of one of the Bench of this Tribunal i.e., Jaipur Bench, in Nehni Bai's case (supra) (Annexure A-6) it has been asserted and submitted that the case has been examined in detail and the complete rule position and the judgment of the Supreme Court in Full Bench have been taken into account in that case. Instead of annexing the judgment with this order and keeping in view the fair-reaching effect in the matter we feel it expedient and necessary to reproduce the complete judgment in this very order itself as under-
"Applicant, wife of deceased Mahendra Singh, submitted this petition for the grant of family pension and other benefits on the ground that her husband was employee of the respondents and was temporary status holder since 1.4.1980. Unfortunately, on 13.6.1988, he met with an accident which resulted in his sad demise. She submitted an application on 17.8.1988, marked as Annexure A-1. She also filed subsequently another petition, Divisional Secretary also addressed a letter dated 10.11.1988 to A.D.R.M. Kota to grant family pension to the legal heirs dependent of the deceased. However, no order has been passed. Applicant prayed that respondents be directed to release the payment of death-cum-retirement gratuity. She has further prayed that respondents be directed to pay pension accordingly and the arrears of pension may also be ordered to be paid to her alongwith the interest at the rate of 18% per annum. The respondents admitted this fact that the applicant's husband served the railways for 11 years and he was temporary status holder since 1980. This is also an admitted position that the petitioner's husband met with an accident and died. The only ground is about the delay in filing the application and under the rules, the family pension cannot be granted to the applicant.
2. Mr. Manish Bhandari, appearing on behalf of the respondents, has vehemently opposed the petition filed by the applicant relying on the Judgment of the Hon'ble Supreme Court in the case of Ram Kumar and Ors. v. Union of India and Ors., reported in AIR 1988 SC 390. He has invited our attention to paras 10 and 11 of the Judgment and submitted that the Hon'ble Supreme Court has held that the retiral benefit of pension is not admissible to temporary employees. Mr. Kaushik, appearing on behalf of the petitioner, submitted that the Judgment of Ram Kumar's has been reviewed by the Hon'ble Supreme Court has directed as under:--
"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 Mr. Ramaswamy or 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."
Mr. Kaushik has also argued that pensionary benefits and family pension are two different things and do not fall in one category and they will have to be classified differently for all purposes.
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-
(a) "Casual Labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servant 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 causal 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 Slate. 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 of secure a social order for the promotion of welfare of the people. It further directs that the State shall, in particular, strive to minimise the inequalities in income, and endeavour 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."
4. Mr. Kaushik has pointed out that Article 37 read with other provisions of Part IV, particularly, Articles 38, 41 and 42, directs the State to see that inequalities are removed and persons get the minimum requirements of the life. It will not be out of place here to mention, (sic) according to Mr. Kaushik, that Article 21 can also be invoked which provides about the freedom of life. Freedom of life includes a reasonably good life and it is the duty, according to Mr. Kaushik, of the State to see that employees enjoy their lives with reasonable security, reasonable standard of life, etc., and after the death in accident or otherwise, the person who are dependent on them should get the minimum benefit which is permissible under the law for their maintenance.
5. Pension and family pension are two different matters independent of each other. A person who renders service of 10 years or more than that can ordinarily claim pension. However, in the case of family pension, the family members of a person who has rendered even one year service can get the pension. Apart from that, family pension is payable to the employee who has rendered service for a particular period. Pension is paid to an employee in lieu of his services under a statutory provision on account of rendering the services so that in the old age he could lead a reasonably good and happy life, and he could maintain his dependents. In the case of family pension, it is only for the maintenance of the dependents of the deceased and it comes to an end in some cases after the efflux of time or happening of a particular event. For illustration, in case of minor children, if they attain the majority and they start earning, the family pension is not available. Similarly, in the case of an unmarried daughter, after she is married, the family pension is not available.
6. So, legislators in their wisdom have enacted different sets of rules for family pension as well as pension. For this very reason, Paragraph 2511, Indian Railway Establishment Manual, relating to pension provides that "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, Chapter XXIII, Paragraph 2311, Sub-clause 3(b) reads as under:
"The widow/widower/minor children of a temporary railway servant, referred to in the preceding sub-para, who dies while in service after a service of not less than one year continuous (qualifying) service shall be eligible for a family pension under the provisions of para 801 of the Manual of Railway Pension Rules, In their case, the amount of death gratuity admissible will be reduced by an amount equal to the employee's two months pay on which the death gratuity is determined."
Thus, under, the Rule 2311 (3)(b), the widow of a temporary railway servant is entitled for pension if her husband has rendered qualifying service exceeding one year. Thus, the benefit of family pension has been extended under Sub-Clause (b), clause (3) of paragraph 2311 of the widow of the temporary railway Employees, 1964, clause (i) reads as under:--
"The Family Pension will be admissible in case of death while in service, the railway servant should have completed a minimum period of one year of service."
Here the word "railway servant" has been used and it has not been mentioned that the railway servant must be the confirmed railway servant in regular service but it includes in its purview the railway servant who is temporary status holder also. If this Scheme is read with the provisions of Paragraph 231 l(3)(b), then it will be clear that the family of the person who has died while in service is entitled for family pension and the government has no right to take an objection that he was a temporary status holder.
7. For the reasons mentioned above, we are of the view that the case of Ram Kumar and Ors., v. Union of India and Ors. (supra), which has already been reviewed by the Hon'ble Supreme Court, does not apply in the case of family pensioners. Family pensioners stand on a different footing than pensioners.
8. Apart from that, a Government employee who has served for a decade or more than a decade expects atleast a reasonable guarantee that in case of an accidental death, the Government shall come forward straight away, offer the benefits being a Welfare State, shall take necessary steps so that the family of a person who has died may not starve. We are living in a democratic country, a socialistic country, in a welfare country and the Welfare Government cannot think in any way that there should be starvation of the family of the employee on account of the death and particularly, when the death is on account of an accident.
9. For the reasons mentioned above, the O.A. is partly accepted. We direct the respondents that the benefit of family pension should be extended to the applicant from the date, i.e., 13.6.1988, the date on which the applicant's husband expired. As far as other reliefs are concerned, Mr. Kaushik does not press and so no order is necessary on them.
10. The respondents are directed to settle the family pension of the applicant within a period of three months from the date of the receipt of the copy of this order. In case the family pension is not paid within a period of three months, the respondents shall be liable to pay the interest at the rate of 15 % per annum.
11. The O.A. is decided accordingly, with no order as to costs."
We have also been informed that an SLP was filed against the aforesaid judgment and the same was dismissed and the judgment has already been implemented.
8. The learned Counsel for the applicant has next relied upon the judgment in Prabhavati's case (supra) wherein the similar position came up before the Hon'ble Supreme Court and the family pension has been allowed to a substitute who was granted temporary status.
9. On the other hand, the respondents have quoted and taken support of one of the judgment of the Hon'ble Supreme Court in Union of India and Ors. v. Rabia Bikaner and Ors., 1997 SCC (L&S) 1524=1998(1) SLJ 181 (SC), wherein it has held submitted that widow of the casual labour with temporary status but not yet appointed to a temporary post and not entitled to family pension. The relevant portion of the same is abstracted as under:
"It is true that under para 2511 of the Railway Establishment Manual, casual labourers with temporary status are entitled to certain entitlements and privileges granted to temporary railway servants but this does not entitled them to family pension. Every casual labourer employed in railway administration for six months, is entitled to temporary status. They are then empanelled and thereafter, they are required to be screened by the competent authority. They are appointed in the order of merit as and when vacancies for temporary posts in the regular establishment are available. On their appointment, they are also required to put in minimum service of one year in the temporary post. If any of those employees who had put in the required minimum service of one year, that too after the appointment to the temporary post, died while in service, his widow would be eligible for pension. In all these cases, though some of the deceased employees had been screened, yet appointments were not given to them since temporary posts were not available or in some cases they were not even eligible for screening because the posts became available after the death. Under these circumstances, the respondent widows are not eligible for family pension benefits. However, if any amounts have already been paid pursuant to the orders of the administrative Tribunal, the same may not be recovered from them."
Thus, the learned Counsel for the respondents has contended that no relief in this case granted since the position is settled by the Apex Court in the matter.
10. The learned Counsel for the applicant has invited our attention to have a close look on the very judgment relied upon by the learned Counsel for the applicant in Rabia 's case (supra) it has been submitted that in Rabia's case has been decided by placing reliance on one of the judgment of the Hon'ble Supreme Court delivered by a Division Bench in Ram Kumar v. Union of India and Ors., AIR 1988 SC 390=1989(1) SLJ 102 (SC). In that case the matter in fact was not related to the grant of family pension. The matter was as to what are the rights and privileges available to a person who has been granted temporary status in the Railways but an averment was made as regards the normal pension that the normal pension was not payable even to the temporary Railway servants and the question of payment of any pension in regard to a temporary status-holder casual labour did not arise. Incidently this position has been discussed in Nehni Bai 's case (supra) also. Further it has been also submitted that the said case of Ram Kumar i.e., AIR 1988 SC 390 has already been superceeded by a Full Bench judgment in review of the very case itself by the three Judges Bench of the Hon'ble Supreme Court in Ram Kumar v. Union of India, reported in 1996(1) SLJ 116 wherein the Hon'ble Supreme Court has held as under:--
On commitment given by counsel for respondents directed-
"(A) Railway Casual Labourers working in 'C' category may be screened and regularised after screening in 'D' entegory but their pay and allowances be protected uptill their promotion in 'C' category.
(B) Railway Casual Labourers Working in 'C' category for five years be screened in 'C' category and regularised.
(C) Railway Casual Labourers attaining temporary status entitled for pensionary benefits as for orders issued by Railway Board be given that benefit.
The only other question to be seen is with regard to entitlement to 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 Mr. 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."
11. The contention of the learned Counsel for the applicant is that unfortunately the above three judges judgment of the Hon'ble Supreme Court was not brought to the notice of the Hon'ble Supreme Court while, adjudicating upon the matter in Rabia's case. Similarly the judgment in Nehni Bai's case (supra) was also not brought to the notice of Apex Court. Thus the Rabia's case could at the most be considered as judgment per incuriam and not a judgment in rem.
12. It has been also been submitted that as per the rule of precedent in case there arc different views of the different Benches of the Hon'ble Supreme Court it is the judgment of the Larger Bench that will be followed as a precedent. In this view of the matter the judgment in review case of Ram Kumar's case, 1996(1) SLJ 116 (SC) is of three Judges judgment whereas earlier judgment in Ram Kumar case reported in AIR 1988 SC page 390 which has been relied upon in Rabia's case inasmuch as the very Rabia's case the judgments are of the two judges Bench of the Hon'ble Supreme Court. In the said three judges Bench judgment, it has been provided that a casual labour who has been granted temporary status is entitled for pensionary benefits as mentioned above.
13. 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 incuriam and in addition to 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 incuriam since the correct position of law and the rule itself has not 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 incuriam and could not be said to be ajudgment in rem so the same would not be made available to other cases.
14. We have given an anxious thought to the rule judgments positions which has been submitted before us on behalf of both the parties and have hardly anything to say in the matter since the rule position regarding the precedent is settled as submitted by the learned counsel for the applicant. In this view of the matter we are left with option except to follow the verdict of the Hon'ble Supreme Court by a three judges Bench in Ram Kumar v. Union of India and Ors. 1996(1) SLJ 116 and wherein has been provided that temporary status casual labour in the Railway is entitled to the pension the matter does not needs any further adjudication since once the normal pension is allowed to a temporary status casual labour, his widow definitely would be entitled for family pension.
Playing regard to the provisions and position of the law, the foregoing discussions made, the law laid down by the Apex Court and for the reasons recorded herein above we find rnerit in this O.A. and the same deserves to be accepted. The O.A. is allowed. The respondents are directed the settled family pension of the applicant within three months from the date of receipt of a copy of this order, In case the family pension is not paid within three months the respondents shall be liable to pay interest at the rate of 9% per annum after expiry of the said period of three months. No orders as to costs.