Central Administrative Tribunal - Chandigarh
Shakuntla Devi Through Lrs Jai Prakash vs M/O Railways on 3 May, 2023
1- O.A. No. 837/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/00837/2019
Pronounced on:03.05.2023
(Reserved On: 02.03.2023)
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Shakuntla Devi w/o late Shri Amar Nath aged about 71 years, R/o
House No. 35/36, Near Water Tank No. 2, Sundar Nagar, Ambala Cantt-
141001.
....Applicant
(By Advocate: Sh. G.S. Sathi)
Versus
1. Union of India, Ministry of Railways through General Manager,
Northern Railway, Baroda House, New Delhi - 110001.
2. Divisional Railway Manager, Northern Railway, Ambala Cantt-
Haryana - 141001.
... .Respondents
(By Advocate: Sh. B.B. Sharma)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. By way of the present Original Application, the applicant has prayed for the following relief:-
(i) In view of the submissions and the facts stated in para 4 of the letter dated 21.05.2019 (Annexure A-1) and letter dated 20.06.2019 (Annexure A-1a) may be quashed.
(ii) Directions may be issued to the respondents to grant pension w.e.f. 01.05.2008 with further revision w.e.f. 01.01.2016 along 2- O.A. No. 837/2019 with interest @ 18% award cost in favour of the applicant for forcing him to approach this Tribunal.
2. The factual matrix of the case is that the applicant served as Casual Labour as defined in para 2001(a) and Chapter XX of Indian Railway Establishment (in short „IREM‟) Manual Volume 1. She worked on the post of Temporary Water Women during summer months. She worked as Safai Wali /Office Khalasi in the office of Respondent No. 2 from time to time before regular absorption on 07.09.1989. The details of her service before being absorbed as a regular employee has been detailed in a tabular form as hereunder:-
Sr. From Date To Date No. of days
No.
1. 19/04/1983 14/08/1983 118
2. 22/04/1984 14/08/1984 114
3. 18/04/1985 14/08/1985 119
4. 15/04/1986 31/09/1986 165
5. 15/04/1987 30/09/1987 166
6. 15/04/1988 10/08/1988 114
7. 18/04/1990 10/08/1990 114
Total (about Two and a Half Years) 910
3. It has been submitted that as per para 2001 of the IREM, a casual worker, who continues to work for more than 120 days without a break will be treated as Temporary. The applicant earned temporary status w.e.f. 15.04.1986 when she continuously worked for more than 120 days, but Respondent No. 2 did not issue any order to that effect. The applicant was screened for absorption against a class IV post on 3- O.A. No. 837/2019 06.03.1990 and was found suitable. She was medically examined on 07.04.1990 and was declared medically fit for the post of Water Women. She superannuated on 30.04.2008 and at the time of retirement, she was drawing the pay scale of Rs.2550-3200 with basic pay of Rs.3140/-. The applicant made a representation dated 01.12.2018 (Annexure A-3). In response to it, URMU received a letter dated 21.05.2019 (Annexure A-1) whereby it was stated that the date of appointment of the applicant was 05.01.1999 and she retired on 30.04.2008 thereby serving for 09 years 02 months and 28 days and is not entitled to pension under the rules (regular service being less than ten years). URMU also received a letter on similar lines on 20.06.2019 (Annexure A-1a) stating that the applicant was appointed on 07.09.1998 and thereby fulfilling regular service for nine years seven months and nine days.
4. It has been pleaded that the applicant is entitled to pension on the ground that the Railway Board issued a circular on 14.10.1980 regarding qualifying service for pension. As per the circular, the service rendered by casual labour after attainment of Temporary status on completion of 120 days of continuous service, half of such service will be allowed to be counted towards pension, but the Respondent No.2 ignored this circular while issuing letters dated 21.05.2019 and 20.06.2019. This issue of counting of temporary service for the purpose of pension has been considered by the Hon‟ble High Court of Delhi in the case of Union of India & Ors Vs. Prempal Singh (CWP No. 7618/2014) and it has been held that the applicants employees were entitled to reckon the entire period of their service as temporary employee and half the period of casual labour for quantifying qualifying 4- O.A. No. 837/2019 service for pension. It has been contended that the respondents failed to add more than twenty two months as qualifying service and by adding this period, the qualifying service comes to more than 10 years and thus the applicant was entitled to pension benefits w.e.f. 01.05.2008 besides other benefits like gratuity, commutation, leave encashment, group insurance and further revision of pension w.e.f. 01.01.2016.
5. The respondents filed the written statement raising a preliminary objection with regard to limitation. It has been submitted that the applicant retired w.e.f. 30.04.2008 and the cause of action, if any, accrued to her on 01.05.2008 and she could raise the claim within one year i.e. till 01.05.2009, whereas she filed the present Original Application on 04.08.2019 i.e. after a period of more than 11 years. Therefore, the O.A. is barred by delay and latches and deserves to be dismissed outrightly on this ground only. By filing representation on 01.12.2018 for the first time raising her claim for pension, the limitation period can neither be extended nor would the rejection of the representation on 21.05.2019 give her a fresh cause of action to raise a claim for pension w.e.f.01.05.2008. Reliance in this regard has been placed on the judgment of Hon‟ble Apex Court in the cases of Union of India and Others Vs. M.K. Sarkar, 2010 (2) SCC59 and S.S. Rathore Vs. State of Madhya Pradesh, AIR 1990 (SC) 10. On merits, it has been contended that the applicant is not entitled to pension as the qualifying service rendered by her is 09 years 02 months and 28 days, which is less than 10 years i.e. the minimum qualifying service prescribed under the Railway Services (Pension) Rules, 1993. The applicant was initially engaged as seasonal water 5- O.A. No. 837/2019 woman and this service was neither continuous nor regular, which cannot be treated equivalent to temporary/adhoc/daily wage service. She was lastly engaged vide letter dated 03.09.1998 and joined on 07.09.1998. After completion of 120 days up to 31.03.1999, the applicant was screened on 26.06.1999 and was brought on the regular establishment as a Railway Servant and on attaining the age of superannuation on 30.04.2008, the applicant retired after rendering service of 9 years 2 months 28 days reckonable as qualifying service for pension which is less than the minimum qualifying service of 10 years prescribed under the Railway Services (Pension) Rules, 1993.
6. It has been pleaded by the respondents that the grant of pension is governed by the statutory rules framed under proviso to Article 309 of the Constitution of India known as Railway Services (Pension) rules, 1993 and Rule 20 relates and defines commencement of qualifying service i.e. the qualifying service of a Railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. In the instant case, the applicant was substantively appointed after screening on 26.06.1999 and the service rendered till superannuation i.e. 30.04.2008 comes to 9 years 2 months and 28 days, which is admittedly less than the minimum service required for grant of pension.
7. I have gone through the pleadings and considered the arguments of learned counsel for both the sides.
8. The short controversy involved in the instant matter is as to whether the rejection of claim of pension of the applicant vide order dated 31.05.2019 on the ground that the applicant put in service of 09 6- O.A. No. 837/2019 years, 02 months and 28 days, therefore, lacking minimum qualifying service of 10 years, is sustainable in the eye of law.
9. The respondents have taken the preliminary objection that the instant O.A. is barred by limitation. Learned counsel for the respondents argued that the O.A. has suffered from delay and latches as it has been filed after a lapse of more than 11 years. In view of the peculiar facts of the case that the applicant is a poor illiterate lady (now deceased), her legitimate right for pension cannot be rejected on the ground of limitation only. The Hon‟ble Supreme Court in the case of Bhagwanti Mamtani Vs. Union of India and Others, 1995 (7) SLR 440 held that the delay of six years in applying for family pension is not fatal. In the case of Union of India v. Tarsem Singh, (2008) 8 SCC 648, the Hon‟ble Supreme Court has held that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights. In this view of the matter, the delay is hereby codoned. During the adjudication proceedings of the Original Application, the applicant expired on 26.07.2022 and thereafter this O.A. has been contested by her legal heir namely Jai Prakash. This Tribunal vide order dated 24.02.2023 allowed the Misc. Application No. 401/2023 and impleaded Jai Parakash as legal heir of the applicant.
10. Admittedly, the applicant was initially engaged as seasonal water woman for the summer season and worked for the periods of 910 days detailed hereinabove. From the perusal of Annexure A-1/A, letter dated 20.06.2019 issued by the Sr. Divisional Railway Manager/P N. Rly, Ambala Cantt, it is established that the applicant had worked as 7- O.A. No. 837/2019 season water woman as casual S/Wali/Gateman/Boxporter/Callman vide letter no.220-E/190/15/pt.42/E-iv dated 20.11.1997. The GM/NDLS has given approval for re-engagement to 19 seasonal waterman as casual labour, S/Wali vide letter no.
220/E/190/15/pt.42/E-iv dated 20.11.1997. The applicant was also appointed as casual labour/S.Wali vide letter dated 03.09.1998 and resumed duty on 07.09.1998 under SHI/Stn/UMB. It has been contended by the respondents that after completion of 120 days upto 31st March 1999, she was screened on 26.06.1999 and superannuated on 30.04.1998, therefore, her qualifying service to become eligible for pension comes 09 years 02 months 28 days, which is not complete for pension and accordingly, her claim was rejected. Per contra, in support of her claim, the applicant has placed on record verification report (Annexure A-3) which discloses that the applicant had also worked as seasonal waterwoman for the period given as under:
19.04.83 to 14.08.83 118 days 22.04.84 to14.08.84 114 days 18.04.85 to 14.08.85 119 days 15.04.86 to31.09.86 165 days 15.04.87 to 30.09.87 166 days 18.04.1990 to 10.08.1990 114 days The respondents have not calculated the said period of applicant‟s working as casual labour for the purpose of quantification of minimum qualifying service of 10 years, to get the pensionary benefits. It is noteworthy to grant the Chapter XX of IREM Volume-II Para 2001(I), 8- O.A. No. 837/2019 which defines the definition of casual labour. For the sake of convenience, the same is being reproduced as under:-
" 2001. (I) Definition of Casual labour - Casual labour refers to labour whose employment is intermittent, Sporadic or extends over short period or continued from one work to another. Labour of this kind is normally recruited from the nearest available source. They are not ordinarily liable to transfer. The conditions applicable to permanent and temporary staff do not apply to casual labour.
Casual labour on Railway should ordinarily be employed only in the following types of cases.
(a) Casual Labour (Open Line).- Casual labour are primarily engaged to supplement the regular staff in work of seasonal or sporadic nature, which arises in the day to day working of the Railway system. This includes labour required for unloading and loading of materials, special repair and maintenance of tracks and other structures, supplying drinking water to passengers during summer months, (recoupment of man-days lost on account of absenteeism) patrolling of tracks, etc. casual labour so engaged in the operation and maintenance of railway system is referred to as open line casual labour, as distinct from project Casual Labour, described in para (b) infra.
(b) Casual Labour (Project)- Casual Labour are also engaged on Railways for execution of Railway projects, such as new lines, doubling, conversion, construction of building, track Renewals, Route Relay interlocking Railway Electrification, Setting up of new units etc. Casual Labour so engaged are referred to as "Project Casual Labour".
Such of those casual Labour engaged on open line (revenue) works, who continue to do the same work for which they were engaged or other work of the same type for more than 120 days without a break will be treated as temporary (i.e. given "temporary status") on completion of 120 days continuous employment."
Under clause (b) of Para 2001 (I) of Chapter XX of IREM, it is provided that the casual labour engaged on open line (revenue) works, who continue to do the same work for which they were engaged or other work of the same type for more than 120 days without a break will be treated as temporary (i.e. given "temporary status") on completion of 120 days continuous employment. In terms of the aforesaid provision, the applicant having worked for the period from 15.04.1986 to 31.09.1986 (165 days) had become eligible for temporary status. The Railway Board Circular no. 120.80 and Board‟s letter No. E(NG)II/78/CL/123 dated 14.10.80, on the issue of counting of the 9- O.A. No. 837/2019 period of service of casual labour after their attainment of temporary status, on completion of 120 days, continuous service as qualifying service of pensionary benefits on absorption as regular Railway Employees also support the claim of the applicant, wherein it has been observed that the matter has been considered in detail in consultation with the Ministry of Home Affairs (Deptt. of Personnel and Administrative Reforms) whereby it has been resolved that the benefit of such service rendered by them as temporary employees before they are regularly appointed should be conceded to them. The concession of counting half of the above service as qualifying for pensionary benefits would be made applicable to casual labour on the railways, who have attained temporary status. In terms of circular dated 14.10.1980, the applicant is entitled for concession of counting of ½ of the past service as qualifying for pensionary benefits. The respondents for the purpose of calculation of minimum qualifying service of 10 years for pensionary benefit has taken the date 20.06.1999 as initial date of employment (the date on which the applicant was screened), whereas from a perusal of Annexure A-1, issued by the respondent no. 2, it is evident that the applicant was appointed as casual labour vide letter dated 03.09.1998 and pursuant thereto, she resumed duty on 07.09.1998 at Ambala station. The period from the date 07.09.1998 (the date of resumption of duty) to 20.06.1999 (the date of screening), for which the applicant rendered service as seasonal waterwoman prior to the appointment as casual labour, has not been considered by the respondents without any plausible justification. The Hon‟ble High Court of Delhi in the case of Union of India and Others 10- O.A. No. 837/2019 Vs. Prem Pal Singh (W.P.(C) 7618/2014 on the similar controversy has held as under:-
"7. The proviso, in our opinion, puts the controversy beyond a shade of doubt in that if an employee officiates in service or is treated as temporary railway servant and subsequently regularized or granted substantive appointment, the entire period of his combined service as temporary appointee followed by the service spent as a permanent employee has to be reckoned for the purpose of pension. Since Rule 20 does not deal with what is to be done with the period of service spent as casual labourer, para 20 of the Master Circular 54 and para 2005 of the IREM address the said issue. Being administrative instructions, they clarify that half the period spent as casual labourers would be eligible to be reckoned for purposes of pension.
8. In the opinion of this Court, the subsequent ruling of the Andhra Pradesh High Court in Ramanamma (supra), with respect, does not declare the correct law. Though the judgment has considered certain previous rulings as well as the provisions of the IREM and Rule 31 of the Railway Services (Pension) Rules, the notice of the Court was not apparently drawn in that case and the Court did not take into account Rule 20, especially the proviso which specifically deals with the situation at hand. Likewise, Chanda Devi (supra) did not consider the effect of Rule 20, which, in the opinion of this Court, entitles those who work as casual labourers; are granted temporary status, and; eventually appointed substantively to the Railways, to reckon the entire period of temporary and substantive appointment for the purposes of pension.
9. For the foregoing reason, the Court is of the opinion that the impugned order does not call for interference. The writ petitions are accordingly dismissed along with the pending applications."
11. The contention of the respondents that the applicant was engaged as a seasonal waterwoman during the peak summer season and her engagement was seasonal only which is not equivalent to 11- O.A. No. 837/2019 casual worker or labour and the applicant is not governed by Para 2001 (1) of the IREM Volume-II, is totally wrong and illegal. The Para 2001 of IREM Volume-II categorically defines the casual labour includes the person supplying drinking water to passengers during summer months, therefore, the contention of the respondents that the applicant is not governed under the definition of the casual labour is misconceived and totally contrary to the provisions of Para 2001 (I) of Chapter XX of IREM Volume-II. Further, in the absence of any plausible reply as to how the circular dated 14.10.1980 does not apply to the applicant, the contention of the respondents is liable to be rejected.
12. In view of the above rule position and the ratio of judgment of the Hon‟ble High Court in the case of Prem Pal Singh (supra), the period of service rendered by the applicant as seasonable waterwoman is required to be considered for the pensionary benefits. The impugned orders dated 21.05.2019 and 20.06.2019 are hereby quashed and set aside. The respondents are directed to determine the pension of the applicant in view of the observations made herein above and grant the relevant benefit within a period of two months from the date of receipt of a certified copy of the order. The Original Application is allowed with the observations herein above. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟