Central Administrative Tribunal - Kolkata
Uday Sekhar Ghosh vs Eastern Railway on 26 July, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A.No. 350/1435/2022 Date of order: 26.07.2024
Present : Hon'ble Mr Rajnish Kumar Rai, Judicial Member
Uday Sekhar Ghosh, son of Late
Nitish Ch. Ghosh, aged about 78 years,
(date of birth-09.01.1944), residing at
55/27/14, Purba Sinthee Road, Dum Dum,
Kolkata - 700030, superannuated as
Gangman/Trackman on 31.01.2004, from
The office of Sr. Section Engineer(P.Way)
at Chitpur, Eastern Railway, Kolkata
..............Applicant
- VERSUS -
1. The Union of India, through General
Manager, Eastern Railway, 17, Netaji
Subhas Road, Fairlie Place,
Kolkata-700001 ;
2. Chief Personnel Manager, Eastern
Railway, 17, Netaji Subhas Road,
Fairlie Place, Kolkata-700 001;
3. Divisional Railway Manager, Eastern
Railway, Sealdah Division, Sealdah,
Kolkata-700 014;
4. Senior Divisional Personnel Officer/
Divisional Personnel Officer, Eastern
Railway, Sealdah Division, Sealdah,
Kolkata-700 014;
5. Senior Divisional Engineer, Eastern
Railway, Sealdah Division, Sealdah,
Kolkata - 700 014;
6. Sr. Section Engineer (P.Way),
Chitpur, Eastern Railway, Kolkata,
Pin-700 037;
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7. General Secretary, Netaji Subhas
Institute, Eastern Railway, Sealdah,
303/1, Acharya Prafulla Chandra Road,
Kolkata - 700 009
............Respondents
For the Applicant : Mr.B.R. Das, counsel
Mr. B.P. Manna,counsel
Mr. K.K. Ghosh, counsel
For the Respondents : Dr. D. Chowdhury, counsel
ORDER
In the instant O.A., the applicant has sought for the following reliefs:-
"i) Consider the service of the petitioner in the quasi-Railway/quasi-Administrative Organisation for the period 01.09.1978 to 26.02.1996 for computing the qualifying service to be counted and added to regular service in the mainstream of the Railway from 04.03.1996 till 31.01.2004 for the purpose of granting pensionary and other retiral benefits by issuance of PPO thereafter;
ii) Pay all the arrears on account of pension and other dues accruing w.e.f. 01.09.1978, if not earlier, at the earliest;
iii) Allow him to join the Retired Employees Liberalised Health Scheme (RELHS-1997);
iv) Certify that transmit the entire records and papers pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayed for in (i) and (iii) above;
v) Pass such other order/orders and/or direction/directions as deemed fit and proper;
vi) Costs."
2. Learned Counsel for the applicant has submitted that the applicant in the instant O.A. was appointed as Library Assistant in Netajji Subhas Institute at Sealdah, a quasi-Railway organization under Eastern Railway. As per the Railway Board's Circular dated 26.08.1977 circulated by the Chief Personnel Officer vide Sl. Circular No.31/80 dated 03.03.1980, employees of quasi-administrative organizations are entitled to be regularly absorbed in Group-D posts in the Railway like temporary status casual labours/substitutes proved they complete 5 years' 3 service. It was categorically mentioned in the said circular that screening of quasi- railway staff could not take place during the last few years for undisclosed reasons. Learned Counsel for the applicant has submitted that the applicant became eligible for screening and regularization after completion of 5 years in the quasi- administrative job w.e.f. 01.09.1978 but he was absorbed in the Railway on 04.03.1996 as Gangman, therefore, half of his quasi-railway service should be counted to make good the shortfall of 10 years' service to enable him to join the Retired Employees Liberalised Health Scheme (RELHS), 1997 and to receive other pensionary benefits, but the respondents have denied to give him such benefits on the plea that he did not complete 10 years of regular service. Hence this O.A.
3. The respondents have filed written reply to the O.A. denying the claim of the applicant. They have stated in the reply that the applicant in the instant O.A. has claimed for counting of half of his service rendered in Netaji Subhas Institute which is a non-government quasi-railway organization, for the purpose of pensionary benefits at par with Casual Labourers and Substitutes which is contrary to the statutory law and mandatory rules. Relying on the reply, Learned Counsel for the respondents has submitted that the Railway Ministry had formulated a policy in the year 1977 for screening and absorption of Quasi-Administrative Offices/Units Staff connected with the Railways. Vide Railway Board's order dated 26.08.1977 it was clarified that staff of co-operative societies, canteens, commissioned bearers, Vendors (of Deptt. Catering ) etc. can be considered after eligible Casual Labourers and Substitutes have been considered. Further, vide letter dated 26.05.1994, it was communicated that quasi-administrative staff who have worked at least 5 years in the Railway Institute, Co-operative Societies etc. should be screened along with the Casual Labourers and Substitutes and their names would be placed at the 4 bottom of the screening list below all the casual labours and substitutes and such employees would be posted as a regular measure, as and when the vacancies are available. Learned Counsel has averred that the applicant was absorbed in the Railway on 04.03.1996 after screening as per availability of vacancies in accordance with law and superannuated on 31.01.2004, therefore, he rendered service less than 10 years and is not eligible for pension. However, Learned counsel for the respondents has submitted that previously the minimum service required for joining RELHS was 20 years which has now been withdrawn, therefore, the applicant is now eligible to join RELHS facility, if applied and after submission of necessary charges and on the basis of number of staff working under them on administrative ground in exigency of service to cater the work load.
4. I have heard and considered the rival contentions of both sides and perused the record.
5. The contention of the applicant with regard to treating the past service from 01.09.1978 to 26.02.1996 as qualifying service for the purpose of granting pension and other pensionary benefits is to be seen in view of the facts of the case and the law laid down by the Hon'ble Supreme Court on the subject. The Hon'ble Supreme Court in para 39 of the judgment in M.M.R. Khan and Others Vs. Union of India & Others [1990 (Supp.) SCC-191] held as under:-
"39. The result, therefore, is that the workers engaged in the statutory canteens as well as those engaged in non- statutory recognised canteens in the Railway Establishments are railway employees and they are entitled to be treated as such. The Railway Board has already treated the employees of all statutory and 11 Delhi based non-statutory recognised canteens as railway employees w.e.f. October 22, 1980. The employees of the other non-statutory recognised canteens will, however, be treated as railway employees w.e.f. April 1, 1990. They would, therefore, be entitled to all benefits as such railway employees with effect from the said date, according to the service conditions prescribed for them under the relevant rules/orders."5
The Hon'ble Apex Court has further observed in Mohan Singh and Others vs. Chairman, Railway Board and Others reported in (2015)10 Supreme Court Cases- 759 that:-
"20. Therefore, in the light of the settled principle enunciated hereinabove, we hold that the subject Canteen is a "statutory canteen" under the Factories Act, 1948 and that the learned Single Judge had arrived at the correct conclusion. In our opinion, the Division Bench of the High Court was not correct in taking a contrary view. We, therefore, allow these appeals. We set aside the impugned judgment [ LPA No. 19 of 2012, order dated 16- 3-2012 (Del)] passed by the High Court, and direct the respondents to treat the subject Canteen at Moradabad as a statutory canteen either under Section 46 of the Act or the relevant clauses of the Railway Establishment Manual. However, so far as the appellants are concerned, we find it difficult to condone or ignore the fact that they were not appointed as per the regular recruitment procedure. To pass an order regularising the services of all workers employed therein would necessarily imply ratification of appointments given outside the constitutional scheme. We, therefore, direct the respondents to consider regularising the services of the appellants presently serving as canteen workers in consonance with the principles laid down in State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753 : AIR 2006 SC 1806] and take requisite action within six months of the receipt of this judgment. Further, as and when the subject posts fall vacant the respondents shall be bound to fill the posts by a regular process of selection. The appellants in the present case shall be allowed to compete in the regular recruitment and the respondents shall grant to them appropriate age relaxation as well as grant proper weightage for their having worked in the subject Canteen."
6. The Railway Board's Circular dated 26.08.1977 circulated vide Srl.No.31/80 dated 03.03.1980 clarifies as under:-
"Doubts have been raised if staff of co-operative, societies, Canteen, Commissioned .......(not legible), Vendors of Deptt. of Caterings etc. could be considered for regular absorption in Class-IV alongwith casual labours, substitutes. It is clarified that such staff can be considered after eligible casual labour and substitutes have been considered i.e. in the list of screening they will be below all casual labour and substitutes."
It has been stated by the respondents' department vide letter dated 26.05.1996 (Annexure A/4) that "the quasi administrative staff who have worked at least 5 years in Railway Institution, Co-operative Societies etc. should be screened along with Casual Labour/Substitutes and their names will be placed at the bottom of the list i.e. in the screening list they will be placed below all the Casual Labours/substitutes and will be posted against Group 'D' vacancies as a regular measure as and when vacancies are available." In the said letter it 6 has also been mentioned that for the last few years no screening of such staff has been done.
7. So far as the controversy related to regularization and pensionary benefits in respect of the workers who are placed in the canteen had already been settled by the Hon'ble Supreme Court in its judgments in cases of M.M.R. Khan and Others Vs. Union of India & Others, Mohan Singh and Others vs. Chairman, Railway Board and Others and (supra). As the case of the applicants in the present O.A. are similarly situated with those applicants, they are entitled to get the similar treatment.
8. In Union of India & Others vs. Rakesh Kumar [(2017)13 Supreme Court Cases 388], the Hon'ble Supreme Court held as follows:-
"39. Rule 20 provides that qualifying service shall commence from the date the employee takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Rule 20 is attracted when a person is appointed to the post in any of the above capacities. Rule 20 has no application when appointment is not against any post. When a casual labour is granted a temporary status, grant of a status confers various privileges as enumerated in Rule 2005 of IREM. One of the benefits enumerated in Rule 2005 sub-rule (a) is also to make him eligible to count only half of the services rendered by him after attaining temporary status. Rule 20 is thus clearly not attracted in a case where only a temporary status is granted to casual worker and no appointment is made in any capacity against any post. The Delhi High Court in the impugned judgment [Union of India v. Prem Pal Singh, 2014 SCC OnLine Del 2354] relies on the proviso to Rule 20 for coming to the conclusion in para 7 of the judgment: (Prem Pal Singh case [Union of India v. Prem Pal Singh, 2014 SCC OnLine Del 2354] , SCC OnLine Del) "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 regularised 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 Master Circular No. 54 and Rule 2005 of 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."
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44. As observed above, the grant of temporary status of casual labour is not akin to appointment against a post and such contingency is not covered by Rule 20 and the same is 7 expressly covered by Rule 31 which provides for "half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to certain conditions enumerated therein". Thus Rule 31 is clearly applicable while computing the eligible services for calculating pensionary benefits on granting of temporary status.
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48. Thus, in cases of those railway servants who are not eligible as per existing rules for grant of pension and there are certain mitigating circumstances which require consideration for relaxation the proposals can be forwarded by the Pension Sanctioning Authority to Railway Board in an individual or group of cases. We, thus, while allowing this appeal and setting aside the judgment of the High Court leave it open to the Pension Sanctioning Authority to recommend for grant of relaxation under Rule 107 in deserving cases." From the above, it is apparent that Rule 31 provides for computation of half of the service period of casual/temporary status employee for pensionary benefits to the staff of Cooperatives, Societies, Canteens, Commission Vendors etc.
9. Therefore, case of the applicants who had worked in the Railway clubs established under the Railway Establishment Manual/Code are coming in the same category under the definition of cooperative/societies as mentioned in the letter dated 26.05.1996 and are entitled for the same treatment. Accordingly Rule 31 as interpreted by Hon'ble Supreme Court in case of Union of India & Others vs. Rakesh Kumar (supra) is also applicable to the instant case and the applicant deserves to get the benefit of half of his past services from 01.09.1978 to 26.02.1996 as qualifying services for grant of pension and other pensionary benefits.
10. Accordingly the O.A. is allowed. Respondents are directed to consider the case of the applicant in the light of the aforesaid discussion and pass order for pension and other benefits within three months from the date of receipt of a copy of this order. No cost.
(Rajnish Kumar Rai) Judicial Member sb 8