Central Administrative Tribunal - Kolkata
Mechani Devi vs Union Of India (Uoi) And Ors. on 15 May, 1998
JUDGMENT D. Purkayastha, Member (J)
1. Applicant, Smt. Mechani Devi being a widow of late Rameshwar Mondal, ex-Gangman under PWI, Eastern Railway, Andal, who died on 18.2.87 claimed family pension under the Family Pension Scheme, 1964 on the ground that her husband was engaged in the Railway as a Casual Gangman on and from 16.8.1963 and worked as Gangman till he was absorbed from 16.4.1969 and thereafter her husband was permanently absorbed and confirmed as well. According to the applicant, her husband acquired temporary status in the Railway and thereby she is entitled to get family pension from the Railway Department and accordingly she applied for family pension and that has been rejected by the authority and she again applied for the same by an application dated 16th March, 1996, but that application has not been disposed of by the respondents. Feeling aggrieved by the said action/inaction on the part of the respondents in respect of granting family pension to the applicant as widow of the deceased casual Gangman has filed this application for a direction upon the respondents to grant family pension, in view of the judgment of the Hon'ble Apex Court, Prabhavati Devi v. Union of India and Ors., 1996(1) SCSLJ 89, where it was decided by the Hon'ble Apex Court after considering the Rules 2311, 2315 and 2318 that a substitute had acquired temporary status on completion of six months of continuous service and widow of the casual substitute is entitled to get family pension under Sub-rule 3(b) of Rule 2311.
2. The case of the applicant is resisted by the respondents by filing a written reply. They said that the application is not maintainable and barred by law of limitation in view of the fact that the applicant's husband was initially engaged as a casual Gangman on 16.6.70 under PWI (YD), Andal and attained temporary status on 16.4.79. It is also stated in the reply that he was not absorbed against the regular vacancy till his death on 17.2.1987. As such the question of his permanent absorption as well as confirmation does not arise. The respondents have, therefore, prayed for the dismissal of the application.
3. Mr. Chatterjee, learned advocate appearing on behalf of the applicant submits that he made categorical statement in para 4.1 of the application that the applicant's husband was absorbed permanently and confirmed as well and that fact has never been denied by the respondents by producing any service record of the applicant's husband, when it is the admitted fact, as per reply of the respondents, that applicant's husband had worked in the Department as Gangman from 16.6.70 till 17.2.87 i.e., till his death. It the service records would have been produced by the respondents, as the respondents are in possession of the records of the deceased employee, it can be found that the statements made by the applicant are correct because a Gangman cannot be kept unabsorbed for a long period of 17 years and thereby adverse presumption ought to have been drawn against the respondents who failed to produce the service records of the deceased employee to show that the applicant's husband was not absorbed and confirmed, as stated in the application.
4. Contrarily Mr. Samadar, learned advocate appearing on behalf of the respondents submits that the burden lies with the applicant to prove beyond doubt that her husband was absorbed and was made permanent in the Department and the applicant could not produce any scrap of paper in support of her application to show that her husband was absorbed as well as confirmed in the Department. No responsibility lies with the respondents to prove the case of the applicant by producing the records and thereby the applicant is not entitled to get any benefit of family pension since her husband was not absorbed against the regular vacancy till his death. In support of his argument Mr. Samadar cited the case of Union of India and Ors. v. Rabia Bikaner etc., 1997(2) SC SLJ 263, wherein their Lordships after considering the earlier judgments of Ram Kumar v. Union of India, reported in (1988)2 SCR 138; Prabhavati Devi (supra) and Union of India v. Sukanti & another, SLP (C) No. 3341/93 etc. came to the conclusion that no retiral benefits is'admissible to the widow of the casual labour who has not been regularised till his death. But it is found that the Hon'ble Apex Court has affirmed the judgment of the Prabhavati Devi case on the ground that in the case of Prabhavati Devi the facts were that from the year 1981 to April 27, 1993, the husband of the appellant had worked as casual worker and obtained the status of substitutes who were working, as defined under Rule 2315 of the Railway Establishment Manual, in a regular establishment on a regular scale of pay and allowances applicable to those posts in which they were employed. Since he died while working in the regular post, his widow became eligible to claim the benefits of the pension scheme and from the judgment it is found that since the appellant's husband was a substitute working in a regular scale of pay in the railway establishment, obviously, he was screened and was also appointed to the temporary status but instead of being given appointment to a temporary post, he was treated as substitute and appointed to the vacancy when the regular candidates went on leave. Under these circumstances, the Hon'ble Apex Court had held that widow of such employee is entitled to the benefit of the family pension and the Hon'ble Apex Court had also distinguished the fact of Rabia Bikaner case from that of Prabhavati Devi case at the time of passing of the judgment in that case wherein the applicant's husband died before screening for appointment to temporary post and from the judgment of Rabia Bikaner case it is clear that regularisation in service is a must for claiming pension. But in Gita Rani Santra 's case Full Bench of this Tribunal had considered the applicability of the deeming provision in respect of casual labours who worked for more than 20 years and continued as such for the purpose of granting family pension to widow of such casual labour. If the Department is responsible and defaulter in making regularisation of service of the applicant or railway servant who continuously worked for more than 20 years, it would be a sheer injustice to those employees for non-regularisation, if vacancies are available in the Department. The respondents should not be allowed to continue the services of the casual workers for an unlimited period. If the vacancies are available in the Department for the purpose of regularisation and casual labours are not screened or selected for empanelment in accordance with the rule, thereby, for such default the widow of the railway servant should not suffer. In that case the respondents should exercise the power of deeming provision to grant the benefit of family pension, where the railway servants are allowed to continue for more than 20 years as casual labours despite the availability of vacancy for regularisation. So, I find that the judgment of Gita Rani Santra case can be applied in this case, since there is no dispute from the side of the respondents that the applicant's husband worked in the Railway establishment from 1963 till his death in the year 1987 and according to applicant, he acquired temporary status and absorbed in the year 1969. The respondents are in possession of the service record and they are bound to maintain service of the casual labours for the purpose of determination of their status, seniority, leave vacancy etc. and in respect of granting regular scale also. There is no reason as to why the respondents did not produce the service record of the applicant in support of their statement made in the reply. It is true that the burden lies with the applicant to prove his case, but if the facts are admitted, the applicant need not prove the same fact by producing evidence in view of the provision of Section 158 of the Indian Evidence Act which says that if the fact is admitted, need not be proved by evidence. It remains undisputed from the side of the respondents that the applicant's husband worked from 16.8.63 till his death in the Railway establishment and he worked for more than 24 years. It is unthinkable that during the period of long 23 years the applicant's husband could not be regularised for want of vacancy. If the security list of the casual labours or casual labour register would have been produced by the respondents before this Tribunal, then it could be determined when the applicant's husband was due to be regularised or was regularised as per seniority maintained by the Railway for the purpose of regularisation in the regular scale of pay. So, I find that the case of Prabhavati Devi as well as the case of the Full Bench of this Tribunal support the case of the applicant.
In the case of Rabia Bekaner I find that the husband of the applicant died after putting in six months service and obtaining the status of a temporary workman, but before his appointment to a temporary post after screening and thereby he was denied the family pension. So I find that the decision in the Prabhavati Devi case which has been affirmed by the Hon'ble Apex Court in Rabia Bikaner case can be applied in the case of the present applicant. In the absence of any such materials in support of the reply of the respondents, it can be safely presumed that before the death of the applicant's husband in this case vacancies were available for screening and for appointment in regular post. Since I find that the Departments are at fault for non-regularisation of the service of the applicant's husband and thereby she is entitled to get the benefit of the judgment of the Full Bench of this Court in Gita Rani Santra case.
Besides, judgment in case of Yashawanta Hori Katkar v. Union of India, 1996 SCC (L&S) 464 may also be referred to where a deemed provision was invoked by the Hon'ble Supreme Court treating a quashi-permanent employee as permanent one for granting benefit of pension. Accordingly the application has been allowed with a direction upon the respondents to grant benefit of family pension to the applicants in accordance with the family pension scheme of 1964 within four months from the date of communication of this order and the applicant should be paid all benefits of arrears of pension which would be admissible to her prior to the period of 3 years from the date of filing this application before this Tribunals has been filed by the applicant on 22.7.97 and no arrears shall be paid to the applicant before such date.
5. In view of the aforesaid circumstance I allow the application with a direction upon the respondents to grant family pension as ordered in the foregoing paragraph. Accordingly the application is disposed of awarding no order as to costs.