Central Administrative Tribunal - Allahabad
Smt. Kamla Devi (Widow Of Late Ram Kishun ... vs Union Of India (Uoi) Through General ... on 8 June, 2007
ORDER K.S. Menon, Member (A)
1. This O.A. has been filed challenging the impugned order passed by Divisional Railway Manager, North Central Railway, Allahabad vide letter No. 769-E-2/Pensions/Feb 2004 dated 21.12.2004 by which the widow applicant has been denied family pension after the death of her husband who died in harness on the false plea that her husband Late Ram Kishun was a temporary status employee and not a regular Railway servant. The applicant has sought that this Tribunal direct the respondents, (i) to grant family pension and other balance pensionary benefits and pay the balance dues (i.e. subsistence allowance) arrears of family pension as admissible under the rules alongwith 12% interest on delayed payment of all admissible amounts payable to her as per rules; (ii) Tribunal to direct award of compensation for harassment caused to the applicant for wrongful denial of family pension.
The facts of the case in brief are as follows:
2. The husband of the applicant was appointed in the Railways as a casual labourer prior to 01.08.1978 and after working for 120 days continuously he was granted temporary status in terms of paragraph No. 2501 of the Indian Railway Establishment Manual (I.R.E.M.). He was working as Gangman since appointment and was medically examined for regular absorption of Gangman and he was allowed all rights and privileges of a temporary railway servant.
3. The husband of the applicant was issued a major penalty charge sheet on 05.01.1997 for unauthorized absence from duty as he was suffering from Tuberculosis and was under treatment from a Railway Doctor. The husband of the applicant was removed from service vide order dated 20.12.1997 and after his appeal was rejected, he filed an Original Application No. 123 of 1999 before this Tribunal. The O.A. was allowed and impugned order was quashed and respondents were directed to hold denovo inquiry reinstating the husband of the applicant vide Order dated 12.01.2004. During the pendency of the inquiry the husband died on 28.02.2004.
4. The applicant sent a representation on 06.03.2004 alongwith a copy of this Tribunal's order dated 12.01.2004 and the death certificate requesting settlement of all payments viz. family pension, compassionate ground appointment etc. since there was no earning member in the family. The applicant also forwarded a copy of Railway Board circular No. RBE No. 115/2000 dated 19.06.2000 on 05.04.2004 which lays down that all disciplinary proceedings will be closed on the death of the charged railway servant.
5. The Divisional Railway Manager, N.C. Railway, Allahabad paid the Provident Fund amounting to Rs.7197/- and terminal gratuity of Rs.36,281/- to the applicant on 21.12.2004 and also intimated that as regards family pension, group insurance, leave encashment, she is not entitled as her late husband was not a regular railway servant. As regards compassionate appointment, she was informed by the Divisional Engineer, N.C. Railway, Chunar that her case for compassionate appointment was not allowed as she is issueless and she is suffering from paralysis.
6. The applicant represented on 05.05.2005 against the impugned order against denial of family pension, pensionary benefits, subsistence allowance of her husband and also drew reference to another similar case where the widow of a temporary status railway employee was paid family pension. The applicant has also contended that her claim for granting family pension is fully covered under Rule 75 (2) (6) of the Railway Service (Pension) Rules 1993 as her late husband was medically examined for absorption as regular Gangman and he was working against a regular post till his death. He is therefore entitled for all rights and privileges admissible under the rules and she should not be made to suffer for the delay on the part of the respondents in regularizing her husband especially after he acquired the status of temporary railway servant after completing 120/180 days of continuous service in terms of paragraph No. 2005 (1) of Indian Railway Establishment Manual Volume II. In support of her contention, the applicant has relied on the following Judgments:
(i) Hon'ble High Court of Andhra Pradesh in case of Eluri Marthamma v. Divisional Railway Manager, Southern Railway and Ors. 2000(3) A.T.J. 238
(ii) Smt. Ram Devi v. Union of India and Ors. O.A. No. 874 of 2000 decided on 27.03.2003 by this Tribunal.
(iii) Smt. Latifan v. Union of India and Ors. 2002 (1) ATJ Page 81 by the Principal Bench, New Delhi.
(iv) Smt. Nanki Devi v. Union of India and Ors. O.A. No. 1891/1994 decided by this Hon'ble Tribunal on 28.03.2000 and the respondents filed writ against the order and Judgment-family pension and compassionate appointment directed to be paid. Writ No. 25452 of 2000 filed against the order of this Hon'ble Tribunal dismissed on 18.04.2001 by the Hon'ble High Court, Allahabad. This Judgment was implemented by the respondents.
(v) Malati Kar v. Union of India AND Ors. 1992 (21) ATC 583-DB/CAT/Calcutta. S.L.P. filed against the order in Malati Kar case by the Respondents/Rlys. was dismissed by the Apex Court.
(vi) Jamini Bala Bera v. Union of India and Ors. (1993) 25 ATC 254 (CAT/Calcutta) Family Pension- Railway Casual Labour-service rendered after acquisition of temporary status for a long period-Held- Widow entitled for family pension-Railway could not be allowed to take advantage for their failure of not regularizing the deceased employee in time. Last of para 3 of case of Jamini Bla Bera v. Union of India and Ors. (1993) 25 ATC 254, decided by the Hon'ble CAT/Calcutta is worth quoting:
3. the ratio of the decision of Malati Kar case {(1992) 21 ATC 583} is that a casual labourer in the predicament that he is, cannot be expected to pursue the authority for regularization of his services and if the Railways or the Government who are expected to be model employers do not act according to rules, no blame can be put at the doors of the poor casual labourers. When the decision of the Hon'ble Supreme Court in Piara Singh case is read along with the decision of this Tribunal in Malati Kar case, the conclusion is inescapable that if a person continuously worked as a casual worker for a number of years, he ought to have been regularized and the failure to regularize him is really a failure of the department and as it is an elementary principle of law that no person can be allowed to take advantage of his own failure. I am not impressed to any relief to pension had he been living.
(vii) Smt. Nehni Bai v. Union of India and Ors. 1994 (3) SLJ (CAT) 523.
(viii) Smt. Vallam Badia v. Union of India and Ors. 2003 (2) SLJ CAT 271 (CAT/Ahmadabad), Smt. Vallam Badia v. Union of India and Ors. reported in 2003 (2) All India Services Law Journal 271 in which Apex Court Judgments of Ram Kumar and Ors. v. Union of India and Ors. {1996 (1) All India Services Law Journal (SC) page 116} was relied on. It was held that the family of a temporary status railway employee is entitled for family pension.
7. The learned counsel for the respondents while disputing the submissions made by the applicant argues that the husband of the applicant was granted temporary status as casual Gangman in pay scale of Rs.200-250/- w.e.f. 24.07.1984 (date of appointment) till his death on 28.02.2004 in the same capacity. He was not screened and empanelled for regular appointment at any stage for regular appointment during his service. The applicant's husband since his appointment from 24.07.1984 till his removal in 1997, remained absent illegally for 2094 days. Respondents deny that the applicant's husband had been treated like a regular employee under the A.E., North Central Railway, Chunar during the course of proceedings under the charge sheet. The applicant's husband was a temporary status casual Gangman when he expired on 28.02.2004 as such the applicant is not entitled for family pension under Rule 75 of the Railway Service (Pension) Rules, 1993, under this provision family pension is admissible only to the family of the railway servant and as per definition under Rule 3 (23) of the Railway Service (Pension) Rules 1993, casual labour does not come under the purview of a Railway servant. The applicant was therefore paid the Provident Fund of Rs.7197/- and terminal gratuity of Rs.36,281/- as admissible. In compliance with this Tribunal's Judgment dated 12.01.2004 a reply was given to the applicant on 21.12.2004 (Annexure A-1) stating she is not entitled to family pension, Group Insurance, leave encashment as her husband was not a regular railway servant. The respondents have relied upon Central Administrative Tribunal (Principal Bench), New Delhi Judgment in O.A. No. 1257 of 2004 in Smt. Urmila Devi v. Union of India and others, wherein it has been held that 20 years of service is required for entitlement of family pension to a temporary casual workman (annexure CA-3). Respondents maintain that the applicant's husband was appointed on 24.07.1984 and not prior to 01.08.1978 as claimed by the applicant in paragraph No. 1 of the O.A. He was removed from service on 20.12.1997 since he has not completed 20 years as per the above Judgment in Urmila Devi case, he is not entitled to pensionary benefits and hence the applicant is not entitled to any relief sought in this O.A.
8. Heard, Shri Sudama Ram, learned counsel for the applicant and Shri S.S. Agnihotri, learned counsel for the respondents and perused the pleadings on record.
9. There are innumerable Judgments of the Tribunals, High Courts and the Supreme Court on this subject matter of entitlement of pension/family pension of temporary status railway employees and those dying in harness. It has however to be admitted that not all cases are similar and it is therefore not possible to come to a generalized Judgment in this case based on the plethora of Judgments relied upon by the respective parties to this O.A.
10. The applicant has not clearly indicated the date on which her late husband was appointed as casual labour as per her written submission, he was appointed prior to 01.08.1978 and after working for 120 days continuously he was granted temporary status. This would mean he was granted temporary status on 01.12.1978. The respondents in their counter have clearly indicated that the applicant's husband was granted temporary status as a Gangman in the scale Rs.200-250/- w.e.f. 24.07.1984. In such a situation this Tribunal is left with no alternative but to go by the specific date mentioned in the written submission of the respondents which is 24.07.1984.
11. On the issue of entitlement of rights and privileges as a temporary railway servant the applicant categorically states her husband was medically examined for the said post by the authorized Railway Medical Officer before he was given temporary status and authorized pay scale, he was found fit for regular Group 'D' Gangman and was working as regular Gangman. She states that even the charge sheet issued to him was as a Gangman and not as a temporary status casual labour. The applicant has however not placed on record any documentary proof in support of the above submissions.
12. The respondents on the other hand emphatically deny that applicant's husband was screened and empanelled for regular appointment at any stage during his service. On the other hand, the applicant's husband since his appointment from 24.07.1984 till his removal on 20.12.1997 was absent for 2094 days and hence he continued to be a temporary status casual Gangman till he died on 28.02.2004. However, in paragraph No. 5 of the Judgment of this Tribunal dated 12.01.2004, it has been stated that the respondents have submitted that the period of unauthorized absence was from 02.05.1994 to 03.01.1997 which works out to about 973 days. In view of the diametrically opposite submissions being made by both parties, it is difficult to ascertain the actual picture about the status of the deceased official.
13. If we go by the plethora of Judgments that the applicant has relied on it seems evident that in all those cases it has been held that Railways cannot be allowed to take advantage for their failure to regularize the deceased employee in time especially after acquisition of temporary status after working for a long period, hence the widow is entitled for family pension. The respondents on the other hand have relied upon the Judgment passed in Central Administrative Tribunal (Principal Bench) Original Application No. 1257 of 2004 on 26.09.2005 in Smt. Urmila Devi v. Union of India. Relevant portion of this Judgment is extracted below:
Para-9 I have carefully perused the judgments cited by the learned counsel for applicant and I am of the considered opinion that none of them is applicable in the facts and circumstances of the present case. I may note at this stage that a Full Bench of this Tribunal at Calcutta in Gita Rani Santra v. Union of India and Ors. decided on 20.06.1997, as reported in Administrative Tribunal Full Bench Judgments 1997-2001 page 295, considered the following issues:
(i) Whether despite non-regularisation of a casual labour with temporary status against a regular post, who has been working continuously for a long period, shall be deemed to have been regularized on the date of death of such an employee in harness irrespective of availability of any post, for the purpose of sanction of family pension to his family or shall be deemed to have been regularized on the date of attainment of normal age of superannuation for the purpose of sanction of normal pension in his favour in the context of provision of rule 31 of the Railway Services (Pension) Rules, 1993 read with provisions of para 2005 of IREM, Vol. II, 1999 Edn. Or provisions of rules 101, 102 and 409 (ii) of Manual of Railway Pension Rules, 1950;
(ii) If the answer to the above question is in the affirmative, what should be the minimum period of continuous service of a casual labour with temporary status prior to the death of such employee or superannuation as the case may be, for the purpose of deemed regularization?
The said Full Bench after noticing, the judgments in Ram Kumar, Prabhavati Devi and Malati Kar (supra), besides hosts of other judgments, came to the following conclusion:
14. The question is now what should be the minimum duration for such service rendered by a temporary railway servant for getting family pension by the wife/widow on the basis of deemed provision for regularisation. Considering the fact that a regular railway servant can claim pension after rendering 10 years of qualifying service and that the service rendered by the casual labour with temporary status is counted only to the extent of 50% for computation of qualifying service, we consider that 20 years period is a reasonable one.
15. In view of the above analysis we answer the reference as below:
(i) Yes
(ii) 20 years
(iii) The case may be remanded to the respective referring Bench for decision in the light of the principle enunciated above.
Para 16. After noticing the Railway Board's letter dated 26.10.1965 on the 'Family Pension Scheme for Railways employees, 1964 as well as judgment noticed hereinabove, it was held that the view taken by the Tribunal in granting the pensionary benefits to the respondents, therein, was illegal and the respondents' widow were not eligible to the family pension benefits. Similarly, in Somoti Dai's case (supra), a Divisional Bench of the Rajasthan High Court considered the provisions of para 2311 (3) (b) of IREM as well as the judgment in Rabia Bikaner's case (supra) and held that the widow of a casual labourer whose services were not regularized till his death was not entitled for family pension and no retiral benefit to his widow could be given.
Para 17. I may note that Rabia Bikaner's case (supra) being the latest in series from the Hon'ble Supreme Court, is binding upon this Tribunal, particularly when all judgments referred prior to the said case had been taken note of and considered therein, in the present case, the applicant's husband had neither rendered 20 years of service, nor screened for regularisation or was a 'substitute'. As such, the judgments relied upon by the learned counsel for applicant would be inapplicable to the facts and circumstances of the present O.A. Going by the date of appointment/grant of temporary status given in the written submission of the respondents i.e. 24.07.1984, the applicant's husband had put in above 13 years upto 20.12.1997 the date he was removed from service. We have to however take cognizance of the fact that this Tribunal quashed and set aside the order of removal and directed the reinstatement of the applicant's husband and initiation of fresh inquiry on 12.01.2004. The applicant's husband however died on 28.02.2004. The service will therefore have to be counted from 24.07.1984 date of grant of temporary status upto 28.02.2004 date of death, which works out to about 19 years and 7 months. It would be a total miscarriage of justice if respondents hold that the applicant's husband was 5 months short of 20 years of service and hence not eligible for pensionary benefits. This has also to be viewed in the background of the applicant's plight of being issueless and affected with paralysis and hence deservedly requires a compassionate consideration.
14. In sum, I have to observe that since the applicant's husband worked continuously for about 19 years and 7 months and he ought to have been regularised and in not having done so, it is the fault of the department and have to reiterate the elementary principle of law that no person can be allowed to take advantage of his own failure.
15. In view of the above, the O.A. is allowed. The impugned order dated 21.12.2004 passed by respondent No. 2 is quashed and the respondents are directed to grant family pension from the date of death of the applicant's husband and pay all other dues to the applicant as admissible under the rules. These orders will be carried out within a period of six months from the date a copy of this Order is placed before him. No order as to costs.