Central Administrative Tribunal - Patna
Krishna Dey vs Union Of India (Uoi) And Ors. on 3 October, 2005
Equivalent citations: 2006(1)SLJ201(CAT)
JUDGMENT
P.K. Sinha, J. (Vice Chairman)
1. The applicant is widow of Late Man Mohan Dey who was appointed as casual labourer in the Postal Department on 04.04.1983 and, having worked as such continuously, he was granted temporary status w.e.f. 29.11.1989 but, as the ill fate would have it, he died in harness on 11.02.1999, still working under temporary status. There is no dispute about the aforesaid facts.
2. The applicant claims that thereafter the respondents sent her form under Rule 54(12) of the CCS (Pension) Rules for being filled up which fact however has been denied in the written statement. The claim of the applicant was that she was paid neither gratuity, nor family pension despite requests rather, without paying her anything, areceipt for Rs. 15,000 was taken, which the respondents say was taken for payment of CGEIS which amount was paid.
Judgment in O.A. 339 of 2004 has been annexed at Annexure-A/5 granting similar relief to another similarly situated applicant, which fact is admitted in the written statement.
3. The applicant claims that a sum of Rs. 2712 which was payable to her on account of bonus and LTA admissible to her deceased husband, was wrongly withheld by the respondents who further asked her to pay a sum of Rs. 33,431 which they claim was on account of over payment of wages to her deceased husband. This has been admitted by the respondents in Paragraphs 2 and 17 of the written statement claiming therein that the aforesaid amount had remained due after adjusting the amount of bonus and LTA as a total of Rs. 36,143 was subsequently found to have been over paid to the deceased employee while he was working under the department. The payment of family pension and other terminal benefits was rejected by the respondents by Annexure-A/7, dated 10.01.2005 which is the speaking order passed on account of an order passed by this Tribunal in O.A. 339 of 2004 (Annexure-A/5) filed earlier by the same applicant, whereunder the matter was remitted back to the respondents, without giving a definite finding, to consider the matter and to record a speaking order.
4. This application thereafter was filed seeking relief to quash Annexure-A/6 by which, as stated above, the applicant was asked to repay the over paid amount of Rs. 33,431, as also to quash Annexure-A/7 whereunder the claim of the applicant for payment of family pension and DCRG had been rejected, with further prayer to direct the respondents to pay family pension to the applicant, arrears with interest.
In course of arguments the learned Counsel for the applicant has pressed the claims of the applicant to be paid family pension to her and not to recover any amount from her, hence these are the twin claims which are being examined under this order.
5. The respondents have rejected the claim of family pension on account of a circular letter dated 30.11.1992, bearing No. DG (Posts) No. 66-9/91-SPB-I which is annexured as Annexure-A/2 as well at Annexure-R/2 (to the written statement). This circular runs as follows:
5. Benefits to casual labourers on completion of three years service in temporary status--In their judgment, dated 29.11.1989, the Hon'ble Supreme Court have held that after rendering three years of continuous service with temporary status, the casual labourers shall be treated at par with temporary Group 'D' employees of the Department of Posts and would thereby be entitled to such benefits as are admissible to Group 'D' employee on regular basis.
2. In compliance with the above said directive of the Hon'ble Supreme Court it has been decided that the casual labourers of this department conferred with temporary status as per the scheme circulated in the above said circular No. 45-95/87-SPB-I, dated 12.04.1991, be treated at par with temporary Group 'D' employees with effect from the date they complete three years of service in the newly acquired temporary status as per the above said scheme. From that date they will be entitled to benefits admissible to temporary Group 'D' employees such as:
(1) All kinds of leave admissible to temporary employees; (2) Holidays as admissible to regular employees;
(3) Counting of service for the purpose of pension and terminal benefits as in the case of temporary employees appointed on regular basis for those temporary employees who are given temporary status and who complete three years of service in that status while granting them pension and retirement benefits after their regularisation; (4) Central Government Employees' Insurance Scheme;
(5) General Provident Fund;
(6) Medical Aid;
(7) Leave Travel Concession;
(8) All advances admissible to temporary Group 'D' employees; (9) Bonus.
3. Further action may be taken accordingly and proper service record of such employees may also be maintained.
6. The argument is that as per Clause 2(3) of this circular letter the counting of service for the purpose of pension and terminal benefits is for those temporary employees who are given temporary status and who complete three years of service in that status, while granting them pension and retirement benefits after their regularisation later, which employees alone would be entitled to the benefits admissible to temporary Group 'D' employees. It was submitted that the period of service under temporary status could be counted for the purpose of pension and terminal benefits only if the employee concerned had been subsequently regularised in a Group 'D' post, which was not the case with the husband of the applicant who had died while working under temporary status.
The bone of contention between the parties lying on this narrow line, the position in law now may be examined.
7. There are decisions which can be relied upon by the either side. In the case of Ram Kumar and Ors. v. Union of India and Ors. 1989(1) SLJ 101, this matter had come up for consideration which related to an employee under the Indian Railways. Their Lordships of the Supreme Court, on dealing with Para 2511 of the 'Indian Railway Establishment Manual', held that under the rules no pensionary benefits were admissible even to temporary Railway servants and, therefore, that retiral advantage was not admissible to a casual labourer acquiring temporary status.
Their Lordships of the Apex Court in the case of Union of India v. Rabia Bikaner (1997 SCC (L&S) 1524 : 1998(1) SLJ 181 (SC); took the same view basing upon the view taken in the case of Ram Kumar (supra). However, that decision in the case of Ram Kumar(supra) came up for review before a three Judges Bench of the Apex Court in a Civil Misc. Petition (Rain Kumar and Ors. v. Union of India and Ors. 1996(1) SLJ 116). Their Lordships considered grant of pension to similarly situated employees and noticed that the Railway Board on the basis of 4th Pay Commission's Report had provided for pension at the time of superannuation even to those who were temporary employees. Referring to the earlier judgment in the case of Rain Kumar, Their Lordships observed that the Supreme Court had taken the view that temporary employees were not entitled to pension on superannuation on the basis of materials that were then placed. Their Lordships thereafter directed the Railway Board to consider the claim of temporary employees for pension at the time of superannuation in view of the fact that the Board had taken its own decision differently, which decision was beneficial to the employees.
Therefore, the judgments of the Apex Court in those two cases under which the grant of pension to temporary employees was rejected, will not help the respondents.
8. In the case of Prabhawati Devi v. Union of India and Ors. 1996 SCC (L&S) 369; Their Lordships of the Apex Court had allowed family pension to the widow of Bipin Kumar Rai who initially was taken into the Railway establishment as a casual worker whereafter he had acquired the status of a substitute. However, this decision can be differentiated with the instant case as in that case the deceased employee was lastly working as a substitute and, as substitute, he became a temporary servant and had become entitled to the family pension under Sub-rule 3(b) of Rule 2311. However, it was argued on behalf of the applicant that in a number of decisions similar benefits have been granted to the dependents of an employee dying in harness while working under temporary status.
9. Learned Counsel for the applicant first argued that in the circular dated 30.11.1992, quoted earlier, it was mentioned that the Hon'ble Supreme Court in their judgment dated 29.11.1989 (without giving citation) had held that after rendering three years of continuous service with temporary status the casual labourers shall be treated at par with temporary Group 'D' employees of the Department of Posts and would thereby be entitled to such benefits as were admissible to temporary Group 'D' employees appointed on regular basis. It was argued that benefit of family pension was admissible to a temporary Group 'D' employee working on regular basis, after he had worked as such in his post continuously for one year. It was argued that, therefore, in the column of benefits granted under that circular an unreasonable restriction was placed that the period employed under temporary status would be counted for pensionary and retiral benefits only after their regularisation, if they had worked under temporary status for three years.
10. In the case of Yashwant Han Katakktar v. Union of India and Ors. 1995(8) SLR 56; the applicant had sought premature retirement from Government service after he had put in 18 1/2 years of service in two different departments under the Central Government and, though request for premature retirement could be made only after 20 years of Government service, the Union of India granted premature retirement to the applicant at that stage, hence the question arose as to whether the appellant was entitled to any pensionary benefits. It was argued that in order to earn pension it was necessary to have minimum of ten years of permanent service and since the total service of the appellate was in quasi-permanent capacity, he was not entitled to the pensionary benefits. Their Lordships did not find anything on the record to show as to why the appellant was not made permanent even after he had served the department for about 18 1/2 years. Holding that it would be travesty of justice if the appellant was denied the pensionary benefits simply on the ground that he was not a permanent employee of the Government, Their Lordships observed that the appellant having served the Government for almost two decades, it would be unfair to treat him temporary/quasi-permanent. Keeping in view the facts and circumstances of the case Their Lordships held that the appellant shall be deemed to have become permanent after he served the Government for such a long period and that the services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits.
11. In the case of L. Robert D'Souza v. Executive Engineer 1982 SCC (L&S) 124 : 1982( 1) SLJ 319 (SC); Their Lordships were considering the question of removal from service vis-a-vis retrenchment without notice in which it was contended that the appellant was a casual labourer, though in that capacity he had worked for more than 20 years. Referring extant rules Their Lordships found that a casual labourer working on a project after completion of six months of working acquired temporary status. It was observed by Their Lordships that the appellant concerned had acquired a status higher than the casual labourer, say, of a temporary Railway servant.
12. In the case of Smt. Santosh v. Indian Council of Agriculture Research and Ors. 2004(3) ATJ 42; which was decided by the Jodhpur Bench of CAT (by a Division Bench), similar question arose. The Tribunal noticed that under the family pension scheme a Government servant if he dies after completion of one year of continuous service would be entitled to the family pension to the dependents. The Tribunal also noticed the decision of the Apex Court in the case of State of Haryana v. Piara Singh 1992(3) SLJ 34, in which it was held that if a casual labourer was continued for a fairly long spell, say, two or three years, a presumption might arise that there was a regular need for his service and in such a situation it became obligatory upon the concerned authority to examine the feasibility of his regularisation. The Bench further noticed the judgment of the Apex Court in the case of Jacob M. Puthuparambil v. Kerala State Water Authority and Ors. , in which it was held that the employees appointed by way of stop gap arrangement and continued for more than two year?, possessing requisite qualification, became entitled for regularisation and should be regularised. Discussing also several decisions of the Tribunal, the prayer of the applicant, Smt. Santosh, was allowed.
13. Similar matter again came for consideration of the Ahmedabad Bench of CAT in the case of Smt. Vallan Badia v. Union of India and Ors. 2003(2) SLJ 271 (CAT). In view of several decisions discussed therein the prayer was allowed.
14. Similar matter was decided by the Principal Bench of CAT in O.A. 1287 of 2000 by order dated 27.08.2001 by a Division Bench. In that case the judgment of Andhra Pradesh High Court in the case of Eluri Marthamma v. Divisional Railway Manager, S. C. Railway ATJ 2000(3) 238, decided on 06.12.1999, was noticed in which it was held that casual labourer who had acquired temporary status before his death was entitled to family pension. This Tribunal in the case of Basanti Domin v. Union of India and Ors. O.A. 474 of 2004 had allowed similar prayer.
15. Here, it may be noticed that this matter can be decided by a Single Member Bench of the Tribunal but this was referred to the Division Bench after noticing the observations in Para 9 of the order recorded in the case of Basanti Domin (supra) by this Tribunal by a Single Member Bench. Noting that provision of grant of family pension in such cases was made in the Department of Railways, the Hon'ble Member held that it would be highly discriminatory if the casual labourers of other departments were deprived of the benefits as that would violate Article 14 of the Constitution of India. We fully agree with the decision arrived at by the Hon'ble Member and other reasonings given for that, but we are in respectful disagreement with the observation that if a benefit has been granted in one department of the Central Government, the same benefit should accrue to the employees in all the departments otherwise it would violate Article 14 of the Constitution of India. Different departments of the same Government work under different work culture and under different parameters. If certain benefits are given to a particular department keeping in view the nature of work being done by that department, and is not made available to the employees of other departments, that in our view would not always be violative of Article 14 of the Constitution of India.
16. As in the case of Yashwant Hari Katakkar (supra), under certain circumstances an employee can be deemed to have acquired a status, in the interest of justice, which has not been granted to him under extant rules or specific orders. The principle of 'deemed achievement' can be applied only in exceptional circumstances and with a view to augment the cause of natural justice.
17. Here, it may also be noted that grant of regular pension on superannuation of an employee, and grant of family pension to the dependents in case the employee dies in harness, are two different things and there are different parameters for grant of the aforesaid two benefits. A Government employee works on a regular post for ten years to become eligible for grant of pension whereas if he has worked for one year on such a post and thereafter dies in harness, his dependents would be entitled to family pension. Pension is granted at the fag end of service when the employee has already worked for a number of years and has earned the right to pension in his old age, whereas, family pension may be granted also to the dependent of an employee who dies in his youth, after one year of service.
18. In that view of the matter, now, we will examine as to whether or not the applicant is entitled to family pension. Admittedly, her deceased husband was appointed as casual labourer on 04.04.1983 and was awarded temporary status w.e.f. 29.11.1989. He eventually died on 11.02.1999. Therefore, he had an engagement of almost 16 years out of which he had worked under temporary status for more than nine years. Certain benefits to an employee under temporary status, who has worked for three years as such, as available to a regular Group 'D' employee, have been granted under the circular dated 30.11.1992, as aforesaid. No reason has been shown as to why this applicant after 16 long years of work under the respondents could not be considered for his regularisation in a Group 'D' post. In a fair play he should have been regularised in service much before his death.
19. It may also be examined as to whether a Group 'D' employee would legally be entitled to family pension in view of the fact that a temporary status worker having completed three years of service under temporary status could be entitled to the benefits admissible to a temporary Group 'D' employees which was the purpose of circular dated 12.04.1991, already reproduced. As already stated, pension and family pension are two different things and both have been defined differently under Section 3(1 )(o) and under Section 3(1)(f) of the CCS (Pension) Rules, (Referred to as 'the Rules'). So far grant of pension is concerned, under Rule 13 of the Rules, the qualifying service of a Government servant shall commence from the date he takes charge of the post in which he is first appointed either substandvely or in an officiating or temporary capacity, provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post.
20. Therefore, a person on first appointed on a temporary post will be entitled to pension but with the rider that such appointment is followed with substantive appointment. Grant of family pension is governed by Rule 54 of the Rules. This rule would apply to a Government servant entering service in a pensionable establishment on or after 1st January, 1964, after completion of one year of continuous service. This rule does not provide for any rider that for grant of family pension the deceased employee must have been substantively appointed at the time of his death.
This matter is made further explicit under the provisions of the Central Civil Services (Temporary Service) Rules, 1965, Rule 10 deals the subject Rule 10(2) provides as follows:
In the event of death of temporary Government servant while in service, his family shall be eligible for family pension and death gratuity at the same scale and under the same provisions as are applicable to permanent Central Civilian Government Servants under the Central Civil Services (Pension) Rules.
Therefore, the dependents of a temporary Government servant dying in harness, would be entitled to family pension.
21. The circular order dated 30.11.1992, as aforesaid, is not in conflict with these rules. In that circular, Para 2(3) deals with the counting of service for the purpose of pension and 'terminal benefits' as in the case of temporary employee appointed on regular basis. Though here the expression 'terminal benefits' also has been used for the purpose of pension but the concluding portion makes it clear that this portion of the order relates exclusively to grant of pension and retiral benefits 'after regularisation', and does not deal with the question of family pension in case a worker under temporary status expires before regularisation.
Therefore, since the Government has admitted in the circular dated 12.04.1991 that all the benefits would be granted to such temporary status workers who had worked as such for three years, as available to a Group 'D' employee, it has to be held that the benefit of family pension would be available to the dependents of the employees dying under temporary status after three years working as such since that benefit is available to a temporary Group 'D' employee, as already seen.
22. Otherwise also, in view of what has been noticed in the foregoing portions of this order, and in view of long 16 years of service under the respondents, out of which more than nine years was under temporary status, in all fairness and in the interest of natural justice, the deceased, Late Man Mohan Dey, will also be deemed to have been regularised in a Group 'D' post before his death. Had he been so regularised, that way also, half of his service under temporary status could be counted for grant of pensionary benefits. Since he had worked for more than nine years under temporary status, he would be entitled to grant of family pension. Taking any view of the matter, we find that the applicant is entitled to family pension from the date of death of her husband.
23. Now coming to the second point, about recovery of money, it has been claimed by the respondents that the deceased was paid excess wages during the period November 1989 to October 1997 and as he did not point out the drawal of excess wages, he was responsible for over-payment. This is a peculiar argument advanced on behalf of the respondents whose offices and establishments were responsible for making the alleged excess payment, if any. In the written statement it has not been clarified, nor in course of arguments, as to in what manner excess payment was made to the deceased employee. It has not even been claimed that the payment of excess wages to him during his life time was on account of any fraud practised by, or any mis-representation made by, the deceased employee. Therefore, there is no difficulty in holding that the over-payment of wages, if made, was on account of mistake committed by the establishment of the respondents.
24. In the case of Sahib Ram v. State of Haryana 1995 SCC (L&S) 248 : 1995(1) SLJ 151.. (SC); upgraded pay scale was given due to wrong construction of relevant order, without any mis-representation by the employee. Their Lordships of the Apex Court had held that the appellant should not be held to be at fault and ordered that such amount paid should not be recovered.
25. In the case of P.H. Reddy v. NTRT 2002(4) ESC 22; the Apex Court considered the matter of fixation of pay scale of Ex-serviceman on re-employment to the civil side wherein higher pay scale was fixed though the pay scale was corrected subsequently. The question arose as to whether the excess pay drawn by such wrong fixation could be recovered. Their Lordships answered in negative as it was due to erroneous fixation of pay scale by the authorities.
In the case of Shyam Babu Verma v. Union of India 1994 SCC (L&S) 683 : 1994(2) SLJ 99 (SC); it was though held by the Apex Court that higher pay scale was erroneously given to the petitioners since 1973, corrected in the year 1984, but since the petitioners had received higher scale due to no fault of theirs, it would not be proper to recover the excess amount already paid to them.
26. Here is a case in which excess amount by way of wages might have been paid by the establishment on account of their own mistake but the recovery is now sought from the widow of the deceased. This is neither proper, nor just.
27. In the result, this application is allowed to the extent that Annexure-A/6, so far it requires the applicant to pay back a sum of Rs. 33,431, is quashed. It is ordered that no recovery will be made and the amount of bonus and LTA (Rs. 2712/-) which the respondents had adjusted against the alleged over payment, should be returned to the applicant within two months of receipt of a copy of this order.
Annexure-A/7, so far it denies grant of family pension to the applicant, is also quashed. The respondents are directed to calculate the family pension admissible to the applicant on death of her husband, within three months of receipt of a copy of this order and, thereafter, to pay her the arrears within a month and also to pay her regularly the family pension. If the amount already deducted is not paid back within the period as stipulated in this order, that would be payable, from the date of expiry of the period with interest @ 10% p.a. till the date of payment. Likewise, if the arrears of pension and the pension amount are not paid within the period as stipulated in this order, those would also, after expiry of that period, be payable with interest @ 10% p.a. till those are paid.
28. This application is disposed of No costs.