Central Administrative Tribunal - Ernakulam
K N Rajappan vs M/O Railways on 1 November, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/00388/2016
Tuesday, this the 1st day of November, 2022
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
K. N Rajappan, Aged 68 years
S/o K. Nanoo, (Retd. Mechanical Fitter
Office of the Deputy Chief Engineer (Construction)/
Southern Railway/ Madras Central)
Residing at: Alum Moottil Padinjattethil
Thekkumkara, Pullichira P.O.
Quilon- 691 304. - Applicant
[By Advocate : Mr.T.C.Govindaswamy]
Versus
1. Union of India, represented by the General Manager
Southern Railway, Head Quarters Office
Park Town P.O., Chennai-600 003.
2. The Chief Personnel Officer, Southern Railway
Head Quarters Office, Park Town P.O., Chennai-600 003.
3. The Divisional Railway Manager, Southern Railway
Chennai Division, Park Town P.O., Chennai-600 003.
4. The Chief Administrative Officer(Construction)
Southern Railway, Egmore, Chennai-600 008. - Respondents
[By Advocate : Mr.Aneesh M, ACGSC]
The application having been heard on 28.09.2022, the Tribunal on
01.11.2022 passed the following:
O.A.388 of 2016 2
ORDER
The applicant claims that he had initially joined the Railways in 1969 as a casual labourer and worked as such till 1971. Then he was discharged for want of work; he was re-engaged on 01.11.1978 under the Inspector of Works, Special Works, Egmore of the open line organisation of the Southern Railway. He was later transferred to the construction organisation under the 4th respondent and was granted status of temporary employee with effect from 01.01.1983. He was promoted as Fitter Grade- II in the scale of Rs.1200-1800 from 26.07.1990. He was regularly absorbed as Gang Man in 1997 and retired on superannuation on 31.01.2007 as Fitter Grade-II. As he was not paid pension, he moved this Tribunal with O.A.284/2008 and obtained a favourable order and thus pension is being paid to him. However, his qualifying service only 50% of his service has been reckoned for the period from 01.01.1983 to 10.03.1997 on which date he was deemed to have been regularly absorbed . Now, he has understood from Annexure-A2 common order of this Tribunal in O.A. Nos.4/2014, 399/2014 and 164/2015, where this Tribunal has directed to reckon the whole of the period of service as temporary status for retirement benefits. Based on the same, he filed a representation before the 3rd respondent, but he has not been given any reply. Even though he has total service of 29 years, only 17½ years service has been reckoned for pension. So he asserts that he is entitled to reckon the period from 01.01.1983 to 31.01.2007 as qualifying service. Thus he seeks a O.A.388 of 2016 3 declaration that the entire service from 01.01.1983 to 31.03.2007 is liable to be reckoned for the purpose of pension and other retirement benefits, and a direction to the respondents to grant him the said benefits forthwith.
2. On behalf of all the respondents, the 2 nd respondent filed a detailed reply. According to him the application is bad under the principles of constructive res judicata. This is the third round of litigation conducted by the applicant. These contentions ought to have been raised in the earlier litigations and therefore he is estopped from claiming further reliefs from the Tribunal. The applicant was engaged as Project Casual Labour in the construction organisation as Fitter on 01.11.1978 and was granted temporary status on 01.01.1983 in accordance with Inder Pal Yadav's Scheme. He was issued an order of empanelment and for regularisation in Group-D post in Chennai Division. But he submitted an unwillingness letter on 28.03.1997 and chose to remain as Project Casual Labour. After retirement, he made a representation and claimed that he should be treated as a regular employee and not as a Project Casual Labourer. When that request was rejected, he moved this Tribunal with O.A.284/2008, which was allowed by the Tribunal on 01.04.2009. In compliance with the direction, pensionary benefits were granted to the applicant reckoning the period of service from 01.01.1983 to 31.01.2007. Based on Rule 31 of Railway Services (Pension) Rules, hereinafter referred to as the Rules, he had a qualifying service of 17 years. He had also filed O.A.820/2009 seeking benefits under the Railway Employees Liberalised Health Scheme O.A.388 of 2016 4 which was allowed by this Tribunal. He was working in the construction field as Project Casual Labourer from 01.01.1978, on completion of five years he was granted temporary status with effect from 01.01.1983 and entire settlement benefits were paid to him. Even the service certificate indicates that his period of service from 01.01.1983 to 31.01.2007 was reckoned. He had also filed O.A.1220/2012 claiming that he is entitled to get temporary status from 01.05.1978 onwards which was considered and rejected by Annexure-R3 order.
3. According to the respondents, the application is barred by limitation. Moreover, referring to the O.M. relied on by this Tribunal in Annexure-A2 order, it is submitted that it was only an inter-departmental communication which should not have been relied on by the Tribunal. Such a communication does not confer any right on the applicant. In this connection, the respondents also relied on the decision in Union of India v. Vartak Labour Union [2011(3) Scale 246] = [(2011) 4 SCC 200]. In conclusion, it is stated that he was a Project Casual Labour and was conferred temporary status from 01.01.1983 that he could not claim the status of open line casual labour. In the light of the decision in Annexure- R-V, Union of India and others v. K.G.Radhakrishna Panickar and others [(1998) SCC (L&S) 1281] the applicant cannot claim any other right. There is nothing to show that he was engaged as an open line casual labour. Thus the application is sought to be dismissed. O.A.388 of 2016 5
4. The applicant did not file any rejoinder in reply to the points urged in the reply statement of the respondents.
5. I heard the learned counsel on both sides in great detail. They have reiterated the respective contentions. Referring to Annexure-A2 order of this Tribunal, which is the trump card of the applicant, the learned counsel submitted that he is also entitled to get the very same treatment and entitled to get entire service reckoned for the purpose of pension. Annexure-A1 is the sheet anchor. Referring to the same, the learned counsel pointed out that Annexure-A1 would indicate the status of the applicant; if he was not appointed against a substantive post, he would not have been promoted. According to the learned counsel, the applicant would fall in Category (iii) in paragraph 55 of Annexure-R7 order reported in Union of India& ors. v. Rakesh Kumar ors.[AIR 2017 SC 1691]. According to the learned counsel, the applicant is not a casual labourer obtained temporary status but was posted against the post of Fitter Grade- III. Ordinarily after one year of obtaining temporary status he would be absorbed. As he was posted in temporary post from 1983 onwards he is entitled to get entire pensionary benefits reckoned from 01.01.1983 till 10.03.1997. According the counsel, principles of constructive res judicata will not work against the applicant.
6. On the other hand, the learned Standing Counsel submitted that the applicant was taking different stands at different times. He had approached this Tribunal thrice before and on those occasions such a O.A.388 of 2016 6 contention was never raised. The O.M. referred to in Annexure-A2 is an inter-departmental communication, which reflects only a view expressed by the department, which does not confer any right on the applicant. The said O.M. has not been implemented and no decision has been taken thereon. The learned Standing Counsel reiterated that the applicant was only a Project Casual Labourer. Even though he was appointed in a post, he refused at that time because the Project Casual Labourer was getting higher emoluments at that time. According to the learned counsel, the applicant will fall only in Category (i) and (ii) in paragraph 55 of Rakesh Kumar, quoted supra, that he is entitled only to get 50% of his past service reckoned which has already been granted.
7. After considering the facts and materials made available, I am of the firm view that the arguments raised by the respondents are formidable and there are very many impediments against granting any relief in favour of the applicant. It has come out that the applicant had approached this Tribunal three times before and this is the fourth round of litigation in succession, since his retirement on superannuation. He had retired as a Project Casual Labourer on 31.01.2007 and was not granted any pensionary benefits. Thus he approached this Tribunal with O.A.284/2018 claiming monthly pension and other retirement benefits. He was staking such a claim based on the reliefs granted in favour of one Poulose and one Ramachandran Nair, similarly placed workers under the Railways. After considering the rival contentions and materials in O.A.388 of 2016 7 Annexure-R1, the Tribunal found that the case of the applicant is identical to that of Poulose and all the benefits that were granted to Poulose were directed to be granted to the applicant as well taking into account his temporary status prior to regularisation and the last pay drawn as per Pension Manual. Thus he was granted pension.
8. Thereafter, he filed O.A.820/2009 claiming benefits of Central Government Liberalised Health Scheme. That was also allowed. On the third occasion he approached the Tribunal with O.A.1220/2012 seeking two passes under the Railway Servants (Pass) Rules 1986. Considering the delay factor and also in the absence of concrete proof to establish the claim that he was not engaged as Project Casual Labourer, that O.A. was dismissed by Annexure-R3 order. Now, taking strength from Annexure- A2 order dated 17.08.2015, he has again approached this Tribunal seeking the aforestated reliefs.
9. The definite case of the respondents is that while continuing as a Project Casual Labourer, he was granted temporary status on 01.01.1983. In accordance with the Inder Pal Yadav Scheme he was issued an order for empanelment and regularisation in Group-D post in Chennai Division. But he had submitted his unwillingness on 28.03.1997. The contentions in paragraphs 7 and 8 of the reply statement read as follows:
'"7. It is submitted that Railways have separate rules for regularization of Casual Labourers engaged in Open Line as well as in Projects. Accordingly, the Project Casual Labourers [hereinafter referred as PCLS] are absorbed against Group O.A.388 of 2016 8 'D'/ Group 'C' vacancies of the Open Line. Their names were considered for empanelment as per their turn based on their aggregate service of total number of days they have worked as Casual Labour. The applicant, Shri K.N. Rajappan, was also one among such Project Casual Labours to whom the orders were issued for empanelment as Gangman / Trackman in Chennai Division during the year 1997. But, the applicant refused to accept the empanelment for absorption as Gangman and instead preferred to continue as PCL Fitter and for this reason, he had submitted an unwillingness letter dated 28.3.1997. The applicant had preferred to remain as a PCL, continued as such and finally retired on superannuation on 31.1.2007, as temporary status attained Project Casual Labourer.
8. It is submitted that based on the Railway Board's instructions regarding elimination of Casual Labourers (CLs) in Indian Railways and to regularize all the Casual Labourers working in various places, after their empanelment, the Casual Labourers were provided with lien in the respective territorial jurisdiction of the Division where they worked to minimize hardship of redeployment and for better service conditions and also for arranging various retirement benefits, smoothly by the respective divisions where the lien is maintained. Accordingly, the applicant was also issued with orders for empanelment in Group 'D'. Even though the applicant had been given a chance to become a regular Railway employee by the process of empanelment during the year 1997, as he construed that continuing in Construction as PCL Fitter would be more beneficial to him and therefore submitted an unwillingness letter with a prayer to continue as PCL Fitter. The applicant had preferred to remain as a PCL, continued as such and finally retired on superannuation on 31.1.2007, as temporary status attained Project Casual Labourer."O.A.388 of 2016 9
As noticed earlier, the applicant did not file any rejoinder. That means, he, as a Project Casual Labourer, was granted temporary status with effect from 01.01.1983. The fact that he was granted temporary status on 01.01.1983 itself reflects the fact that he was a Project Casual Labourer, who cannot claim the status of open line casual labourer. In this connection, the respondents have relied on the decision in Radhakrishna Panickar, quoted supra.
10. A copy of O.A.284/2008 is not made available. But that was the earliest possible opportunity made available to him to claim that he is entitled to get pension for the whole period from 01.01.1983. Without making such a plea in the said O.A., he is approaching the Tribunal piecemeal. Thus there is considerable force in the argument that the claim is barred under the principles of Explanation IV to Section 11 of the CPC. He might and ought to have raised this relief in the earlier proceedings. Failure is sufficient to take adverse inference against him.
11. Secondly, the O.A. is badly barred by limitation. He had retired on superannuation on 31.01.2007. But the Original Application was filed only on 18.05.2016 and plausible explanations are not forthcoming for the long delay. In fact that application has been filed as if there is no delay in filing the same.
12. Thirdly, as mentioned earlier, the immediate reason prompted him to approach this Tribunal this time is Annexure-A2 order. A relief was granted in the said O.A. by the Tribunal basing on Office O.A.388 of 2016 10 Memorandum No.E(NG)II/2014/CL/14 dated 25.11.2014. As rightly pointed out by the respondents, it is only a communication in the form of a suggestion given by the Railway Board to the Secretary, Department of Personnel and Training, expressing the view that a liberalised approach has to be taken in counting qualifying service for the purpose of grant of pensionary benefits. There is nothing on record to show that any decision has been taken on this communication. The respondents assert that no decision is taken yet. Moreover, as held by the Hon'ble Supreme Court on numerous occasions, since such a communication has not culminated in passing any executable orders, it was idle to give any positive directions basing on such inter-departmental communication.
13. In fact, non-filing of a rejoinder by the applicant has to be viewed seriously. Even though it was claimed, based on Annexure-A1 that he was appointed as Fitter prior to 26.07.1990, the definite case of the respondent is that offer to absorb him as Gangman was refused by letter dated 28.03.1997. Therefore, any amount of argument based on Annexure- A1 cannot advance his case.
14. The learned counsel for the applicant also submitted that the applicant falls in category (iii) in paragraph 55 of Rakesh Kumar's case, quoted supra. For the reasons already stated, such an argument cannot be upheld.
15. Annexure-A-2 cannot be taken as a binding precedent, notwithstanding the question whether it was challenged by the respondents. O.A.388 of 2016 11 I am of the view that the applicant has moved the Tribunal on experimental basis and is not entitled to get any relief.
Original Application is dismissed. No costs.
Dated 1st November, 2022 JUSTICE K.HARIPAL JUDICIAL MEMBER ds O.A.388 of 2016 12 Applicant's Annexures Annexure A1: A true copy of Memorandum bearing No.407/CN/DL issued by the Deputy Chief Engineer/Construction/Southern Railway/Chennai dated 21.08.1990.
Annexure A2: A true copy of the order in OA.No.180/04/2014 and connected cases dated 17th August 2015.
Annexure A3: A true copy of representation submitted by the applicant dated 12.04.2016 addressed to the 3rd respondent.
Respondents' Annexures Annexure R1: Photocopy of order dated 1/4/2009 in OA.No.284/08. Annexure R2: Photocopy of the Railway Servants Pass Rules 1986 (1993 Edition).
Annexure R3: Photocopy of the Tribunals order dated 30/9/2013. Annexure R4: Photocopy of the judgment in OA.No.1449/02 dated 12/3/2007.
Annexure R5: Photocopy of judgment of Supreme Court reported in 1998 SCC (L&S) 1281.
Annexure R6: Photocopy of the judgment of the Hon'ble Supreme Court in Civil Appeal Nos.2129-2130 of 2004.
Annexure R7: UOI VS Rakesh Kumar in CA No.3938 of 2017 Annexure R8: A.E. Anthony Vs UOI - similar OA dismissed by hounourable CAT/MAS Annexure R9: Counting of Project Casual Labour service prior to attaining of temporary status for pensionary benefits on their absorption in regular employment on Railways *****************