Central Administrative Tribunal - Ernakulam
Kunchayan Kutty T vs M/O Railways on 17 November, 2022
1 O.A No. 180/00232/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00232/2017
Thursday, this the 17th day of November, 2022.
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
T. Kunchayan Kutty,
Senior Track Man (Retd.),
Southern Railway, Palghat Division. - Applicant
[By Advocate: Mrs. Thanuja Roshan George]
Versus
1. Union of India represented by Chief Personnel Officer,
Southern Railway, Chennai - 3.
2. The Senior Divisional Personnel Officer,
Southern Railway. Palghat Division, Palghat. - Respondents
[By Advocate : Mr. S. Ramesh, ACGSC]
The application having been heard on 31.10.2022, the Tribunal on .
17.11.2022 delivered the following:
O R D E R :-
The applicant contends that he had entered Railway service as Skilled Casual Labourer (Moppila Khalasi) on 06.05.1973 and continued as such till 05.11.1981. He was regularized on 28.11.1998 and retired from service on 31.12.2006, two years short of qualifying service for minimum pension. He contends that casual service of the applicant was not taken into account for any service benefits, by 2 O.A No. 180/00232/2017 virtue of the judgment of the Hon'ble Supreme Court, he should have been granted temporary status with effect from 01.01.1981. According to him, similarly placed persons were granted temporary status with effect from 01.01.1981 like one Shri Mohammed Shah was junior to the applicant but the respondents did not consider the representation of the applicant for grant of pension and other benefits. According to him, denial of valid qualifying service to the applicant is against justice, equity and good conscience. The judicial pronouncements clearly indicate that he is entitled to get 50% of casual labour service and 100% of temporary status period for determining pension and MACP benefits. Therefore, denial of the same is illegal. He is entitled to get all the statutory benefits of temporary status with effect from 01.01.1981. Therefore, he seeks declaration of 50% of the casual service from 06.05.1973 to 05.11.1981 and 100% of temporary status service from 01.01.1981 to 31.12.2006 to be reckoned for determining pension, terminal benefits, ACP and MACP and to grant pensionary benefits in accordance with the same.
2. The respondents have denied the contentions. On behalf of both the respondents, 2nd respondent filed a reply. According to him, the 3 O.A No. 180/00232/2017 Annexure A-1 produced along with the application would show that his period of service was from 28.11.1998 to 31.12.2006. If he was aggrieved and was eligible for pension taking into account his earlier casual service, he should have made representation and should have approached this Tribunal in the year 2007 itself. However, he has filed the O.A claiming pension only in the year 2017 after a lapse of 10 years. Therefore, the application is hopelessly barred by limitation. Turning to the merits also, it is contended that the applicant is not entitled to get any relief. According to the 2 nd respondent, the applicant was initially engaged in Railway as a Casual Labourer (Moppila Khalasi) on 06.05.1973 and retrenched on 09.12.1976 duly paying retrenchment compensation and notice pay. Thereafter, he was re-engaged as Moppila Khalasi on 23.08.1978 and retrenched on 12.03.1980 with compensation and notice pay. Again, he was re-engaged as Casual Labourer Moppila Khalasi on 08.09.1980 and retrenched 01.11.1980. Later he was re-engaged as Casual Labourer Moppila Khalasi 08.01.1981 and retrenched on 05.11.1981 with compensation and notice pay. During the above period, he was engaged in works related to 'Conversion of lines' between Ernakulam and Trivandrum and re-girdering of Bridge No. 1274, which were project works. From the details of engagement 4 O.A No. 180/00232/2017 given above, applicant as Casual Labourer was not continuous and there was break in service. As per the Scheme formulated by the Railway and approved by the apex Court in Inder Pal Yadav case, Project casual labourers have become entitled for temporary status in a phased manner from 01.01.1981 onwards. Here, no orders seem to have been issued granting the applicant temporary status as per the above Scheme. He had also not raised any complaint in this regard so far. Assuming that, without considering the above fact the applicant had obtained temporary status as per the Scheme on 01/08.01.1981, as contended by him, his temporary status shall be only for the period from 08.01.1981 to 05.11.1981 as he was finally retrenched on 05.11.1981. Thereafter, he was not in Railway service for a considerable period of 17 years.
3. According to the respondents, as per the directions in Inder Pal Yadav case, live register of retrenched casual labourers was maintained by the Railway in which the name of the applicant appeared as sl. No. 231. Accordingly, on screening he was found eligible and was given offer of appointment as temporary Gangman, thus he joined the post of Gangman/Trackman on 28.11.1998. Afterwards he was promoted as Senior Tracksman in the scale 5 O.A No. 180/00232/2017 Rs. 2650-4000 on 01.11.2003. While so, he retired from service on superannuation on 31.12.2006. As he did not have minimum qualifying service of 10 years as provided in the Rule 102 of Manual of Pension Rules, 1950, he was not granted pension. It is also evident that he was not in service for a prolonged period of 17 years from 06.11.1981 to 27.11.1998. Rule 31(d) of the Railway Pension Rules prescribes that half of the temporary status service will be reckoned for pernsionary benefits provided the same is followed by regular absorption. Here no orders have been issued granting the applicant temporary status. Even assuming that he was eligible for temporary status on 01/08.01.1981, obviously, his alleged temporary status service from 08.01.1981 to 05.11.1981 was not followed by regular absorption as he was not in employment from 06.11.1981 to 27.11.1998. The respondents also placed reliance on the judgment of the Hon'ble Supreme Court in Union of India v. Rakesh Kumar & Ors in Civil Appeal No. 3938/2017 (AIR 2017 SC 1691) and also Annexure R-3 to R-5 communications. According to the respondents even though he had intermittent service as Casual Labourer, he was never granted temporary status nor he had given any representation. Therefore, he is not entitled to get any relief. It is also pointed out that after he had entered regular service on 28.11.1998, he was given 6 O.A No. 180/00232/2017 a promotion and therefore, he cannot claim any benefit under the ACP also. His eligible DCRG, service gratuity and leave salary have already been paid.
4. I heard learned counsel on both sides. According to the learned counsel for the applicant, the dates given in paragraph 4 of the reply are accepted by him. According to him, by virtue of Inder Pal Yadav case rendered in 1985 temporary status was given under the Scheme formulated by the Railways and modified by Supreme Court from 01.01.1981. According to him, a calculation of the different breakup period in which he was engaged as casual laborer would indicate that he had put in 1937 days which comes to about five years and four months. Atleast 50% of it is to be reckoned as service, that he was employed in regular service on 28.11.1998, his total service falls short of two years and a few months for granting minimum pension. According to the learned counsel, the case of the applicant falls in clause (ii) of para 55 of the judgment of the Hon'ble Supreme Court in Rakesh Kumar and Others, mentioned above.
5. On the other hand, according to the learned Standing Counsel, the period of service of casual labour of the applicant was never 7 O.A No. 180/00232/2017 continuous. Before absorption he did not work for 17 years which is not a small interval in service. What is important is not Rule 20 of the Pension Rules but Rule 31. He was never given temporary status, for over 10 years he did not raise any challenge and has approached this Tribunal after long lapse of years, which delay is not explained. But according to the learned counsel for the applicant, even though he was not granted temporary status as per Inder Pal Yadav Case, he should have been considered for temporary status on 01.01.1981. A person who has put in 360 days as casual labourer, even though as Project Casual Labourer, is entitled to get the benefit and the denial of the same is illegal and uncharitable. According to the learned counsel, the applicant is 70 years old and even after putting in more than eight years of regular service and nearly six years of casual labour service, it is inequitable to deny the benefit of minimum pension.
6. It is true that the applicant was engaged as a Moppila Khalasi by the Railways from 06.05.1973. According to him, he had continued as such till 05.11.1981. The O.A does not contain other details but the reply contains different spells in which the applicant was engaged as Moppila Khalasi, for the period from 06.05.1973 to 09.12.1976, 8 O.A No. 180/00232/2017 secondly from 23.08.1978 to 12.03.1980, then from 08.09.1980 to 01.11.1980 and lastly from 08.01.1981 till 05.11.1981. It was thereafter the Inder Pal Yadav Scheme was formulated and implemented by Railways. On the strength of the Scheme a live register was maintained by the Railways and the name of the applicant appeared as Sl. No. 231, on the basis of which he was screened and offered appointment as Gangman/Trackman on 28.11.1998. Thereafter, he was given a promotion as Senior Trackman on 01.11.2003, while so, he retired from service 31.12.2006. He had only nearly eight years of regular service, since he did not have minimum qualifying service as provided under Rule 102 of the Manual of Pension Rules, he was not granted pension.
7. The application has been opposed on different grounds. Firstly, it has been pointed out that the application is badly barred by limitation. In fact, this Tribunal is unable to close its eyes to this argument, which is very pertinent. As admitted by both sides, he was appointed as a regular employee on 28.11.1998 and retired from service on 31.12.2006. The OA was filed on 03.04.2017, more than ten years after his retirement on superannuation. The application does not contain any averment as to what was the reason for this 9 O.A No. 180/00232/2017 delay. There was no application for condonation of delay also. In such a case, as rightly pointed out by the learned Standing Counsel for the respondents, inordinate and unexplained delay cannot be ignored by this Tribunal. As held by the apex Court in State of Karnataka & Others v. S.M. Kotrai and others in [(1996) 6 SCC 267], there must be proper explanation to justify the delay and the explanation must relate to failure to avail the remedy within the limitation period. There are other authorities also which completely justify the stand taken by the respondents. As held by the Apex Court, the scope of jurisdiction under Sections 21 and 19(1) of the Administrative Tribunals Act to condone the delay is very limited. It is settled that there must exist sufficient grounds for the satisfaction of the Tribunal to condone delay. Normally only reasonable delay can be condoned for which there must be plausible and satisfactory explanation. Here no explanation at all is forthcoming and the O.A was filed as though it is on time. Filing of repeated representations will not enlarge the period of filing an application under the Act or will provide a sufficient ground and reason for condonation of delay. Here, even though it was stated that he had made representations, the copy of the said representations are not forthcoming. On the other hand, the respondents have stated that he did not file any 10 O.A No. 180/00232/2017 representation seeking to grant him full pension reckoning the period of casual labour service rendered by him. A person, who was slumbering over his rights for long period of time cannot expect any indulgence from this Tribunal. Therefore, the first objection alone is sufficient to reject the Original Application.
8. Turning to the merits also, I am not convinced that the applicant is entitled to succeed. Different spells of service rendered by him as casual labour during the period from 06.05.1973 to 05.11.1981 have already been stated. The Hon'ble Supreme Court has considered the question in very detail in Rakesh Kumar, quoted supra and summed up the directions in paragraph No. 55 as below:-
"55. In view of foregoing discussion, we hold:
i) the casual worker after opbtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purpose of calculation of pension.
ii) the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension.
iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993.
(iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been 11 O.A No. 180/00232/2017 subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993. "
9. The learned counsel for the applicant submitted that the case of the applicant falls within the sub category (ii) in paragraph 55, that is 'casual labourer before obtaining the temporary status is also entitled to reckon 50% of casual service for the purpose of pension.'
10. Now the question is whether the applicant can be held to have fallen within this category to grant him benefits. Even though the long lapse of delay is not explained, after going through the judgment in Rakesh Kumar case, I find it difficult to extend the benefit of the judgment to the applicant.
11. In this connection, the Apex Court has stated that the grant of temporary status of casual labourer is not akin to appointment against a post and such contingency is not covered by Rule 20 and the same is 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 12 O.A No. 180/00232/2017 certain conditions enumerated therein". Such conditions can be seen in Annexure R-4. Whatever it may be, in order to get the benefit of sub-clause (ii) of paragraph 55, it is a pre-condition that the person should have obtained temporary status. As stated earlier, the applicant has no case that he was ever granted temporary status before he was regularised on 28.11.1998. It is very important that service of a casual worker after obtaining temporary status till his regular absorption in the post alone is reckoned to entitle him to get pensionary benefits of at least 50% of the casual service. Here, the O.A is conspicuously silent about any such status awarded to him. Secondly, as rightly pointed out, after 05.11.1981, for about 17 years the applicant was not heard at all. Thereafter, by virtue of the live register maintained by Railways, he was called for screening and that was how he was regularized with effect from 28.11.1998. His whereabouts were not known for long years between 06.11.1998 and till he was regularised in November 1998. Neither he has a case that he was given temporary status during the period nor he has produced any document. He has not made any attempt to get temporary status. In the circumstances, the argument of the learned counsel that he should deemed to have been granted temporary status, cannot be accepted.
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12. In my reading, merely for the reason that he was engaged intermittently for different spells of service for the period from 06.11.1973 to 05.11.1981, he cannot be granted the benefit as per Annneuxer R-2.
13. There is no merit in the application. The O.A is dismissed. No costs.
(Dated, this the 17th November, 2022.) JUSTICE K. HARIPAL JUDICIAL MEMBER ax 14 O.A No. 180/00232/2017 Applicant's Annexures Annexure-A1. A Photostat copy of the Service Certificate dated 21.12.2016 Respondents' Annexures Annexure R-1: True copy of Rule 102 of Manual of Pension Rules 1950 Annexure R-2: True copy of judgment dated 24-03-2017 in CA No. 3938/2017 Annexure R-3: True copy of Railway Board Order dated 27.04.2017 Annexure R-4: True copy of Railway Board letter No.E(NG)II/78/ CL/12 dated 14.10.1980 Annexure R-5: True copy of Railway Board letter No. E(NG)11/85/ CL/6 dated 28.11.1986 15 O.A No. 180/00232/2017 16 O.A No. 180/00232/2017