Central Administrative Tribunal - Kolkata
Smt Shyamali Bhuinya vs Doordarshan on 18 September, 2024
1 OA 1390/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A./350/01390/2021
Date of hearing : 10.09.2024
Date of Judgment : 18.09.2024
Coram: Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
(1) Smt. Shyamali Bhuinya,
Wife of Late Rampada Bhuinya, aged about 55 years, residing at
Bandhpara, ATI, Dadpur, District Hooghly, Pin- 712305.
(2) Smt. Moumita Das alias Moumita Bhowmik (Das), married
daughter of Late Rampada Bhuinya, wife of Sri Sujay Das, aged
about 33 years, residing at village- Nabasan, Daspara, PS Haripal,
District- Hooghly, Pin- 712407.
... Applicants
-Vs-
1. Union of India through the Secretary, Ministry of
Information & Broadcasting (MI &B), 5th Floor, Shastri Bhawan,
New Delhi-110001.
2. Director General, Doordarshan Kendra, Mandi House, New
Delhi- 110011.
3. Additional Director General (P) (EZ), Doordarshan, Golf
Green, Kolkata- 700095.
4. Dy. Director (Admin), Doordarshan Directorate,
Copernicus Marg, New Delhi-110001.
5. Shri Shambhu Naskar, son of Manik Naskar, MTS
Doordarshan Kendra, Kolkata, residing at Ramchandrapur Para,
Satsangha Nagar, PS Haridevpur, PO RC Thakurani Chak, Joka-1,
Kolkata-700104.
...........Respondents
2 OA 1390/2021
For The Applicant(s): Ms. T. Das, Counsel
For The Respondent(s): Ms. J. D. Chakraborty, Counsel
ORDER
Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"i) An order directing the respondents to cancel, rescind, withdraw or set aside the purported speaking order dated 06.05.2021 since been issued without due application of mind.
ii) An order directing the respondents to allow the applicant to be regularized with retrospective effect following his temporary status and allow him pension and pensionary benefits accordingly.
iii) That Your Lordships may be graciously pleased to direct the respondents to issue order for payment of due pension and family pension and pensionary benefits with effect from 30.11.2010 with interest as applicable thereon in the interest of justice.
iv) That Your Lordships may further be graciously pleased to direct the respondents to pay due compensation for his sorrow and sufferings and cost and incidentals of the case including expense incurred on its litigation in favour of the applicant.
v) An order directing the respondents to submit all the relevant papers/documents before the Hon'ble Bench with copy to the Learned Advocate for the applicant for conscionable justice.
vi) Any other order or orders further order/orders, Your Lordships may deem fit and proper in the interest of justice."
2. This matter is taken up by Single Bench, in view of the revised list dated 10.09.2021 issued under Sub-section (6) of Section 5 of the Administrative Tribunals Act, 1985, as no complicated question of law is involved in this matter, with the consent of both the parties.
3. For the sake of clarity, facts in the case are delineated and discussed hereinunder :-
3 OA 1390/2021
3.1 The applicant no. 1's husband worked as a Casual employee in Doordarshan since 07.04.1986. He was granted temporary status on 03.04.1995. He retired from service on 30.11.2010 on reaching the age of superannuation. After his superannuation, he applied for pension. His representation was rejected on the ground that his services were never regularized.
3.2 Aggrieved by the rejection of his representation, the applicant filed OA no. 1418/2014 which was disposed of by order dated 16.11.2018 granting liberty to the applicant to file a comprehensive representation to Director General, Doordarshan and by directing the Director General, Doordarshan to consider his representation. In compliance of this order, the respondents issued a speaking order dated 07.05.2021 rejecting the appeal of the applicant.
3.3 The applicant filed this OA aggrieved by the decision of the authorities to reject his application for grant of pension. The applicant expired on 07.02.2022. A Substitution Application filed by his wife Shyamali Bhuinya was allowed by this Tribunal vide order dated 13.05.2022. His wife, the applicant no. 1 herein applied for grant of family pension. Her representation was also rejected on the same grounds. Hence, this OA.
4. Learned Counsel for the applicant submits that the husband of the applicant did not apply for regularization during his service period as he was apprehensive of facing punitive action. He applied for regularization with retrospective effect as well as for pension after his retirement from service in 2010. Learned Counsel for the applicant submits that vacancies in regular posts existed during his service period against which his services should have 4 OA 1390/2021 been regularized. He cites replies of the authorities to his RTI queries in this regard. Learned Counsel for the applicant submits that persons junior to him were regularized whereas he was overlooked.
Learned Counsel for the applicant further submits that it is settled law that an employee who has been granted temporary status is entitled to all settlement benefits like PF, Gratuity and pension at applicable rates. He cites the judgment of the Hon'ble Apex Court in Yashwant Hari Katakkar vs. Union of India & Ors. reported in 1996 SCC (L&S) 464 and the order of this Tribunal in OA no. 788/2014 in this regard.
5. Per contra, the respondents in their reply have made the following points :-
1. As per para 2(b) of the CCS (Pension) Rules, Pension is admissible only to regular employees. Since the services of Rampada Bhuinya were not regularized before his disengagement, he was not entitled to pension.
2. In compliance with the Labour Court's order, gratuity with interest was paid to Rampada Bhuinya.
3. Following the judgment of the Hon'ble Supreme Court in Uma Devi, process of regularization of Casual Workers in the respondent organization was kept on hold pending formulation of a policy in the light of the aforesaid judgment.
4. Services of some Casual Labour with temporary status were regularized in 2013 as per policy framed by the Prasar Bharti Board. Since Rampada Bhuinya had already been disengaged in 2010 on turning 60 years of age, his case for regularization was not considered.5 OA 1390/2021
5. Respondents cite the judgments of Hon'ble Supreme Court in State of Karnataka vs. Uma Devi Appeal (civil) 3595-3612 of 1999, General Manager, North West Railway & Ors. vs. Chanda Devi SLP (Civil) No. 23737/2005 and of Hon'ble Delhi High Court in Ram Dei vs. Union of India & Ors. WP (Civil) No. 7512/2004 in support of their contentions.
6. Heard the parties. Perused material on record.
6.1 Following two issues are framed for adjudication :
(i) Whether a Casual Worker with temporary status is entitled to pension.
(ii) Whether the services of the original applicant, Rampada Bhuinya should have been regularized before he was discharged from service on 30.11.2010 on reaching the age of superannuation.
6.2 Casual Labour in Government organisations were granted temporary status in terms of DoP&T OM dated 10.09.1993. This OM also provided for the entitlements of a Temporary Status Worker (TSW). Relevant parts of the OM dated 10.09.1993 are as follows :-
".......................
4. Temporary Status
(i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group 'D' posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv) Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group 'D' posts.6 OA 1390/2021
5. Temporary status would entitle the casual labourers to the following benefits :-
(i) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group 'D' official including DA, HRA and CCA.
(ii) Benefits of increments at the same rate as applicable to a Group 'D' employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 240 days (206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
(iii) Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave, will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.
(iv) Maternity leave to lady casual labourers as admissible to regular Group 'D' employees will be allowed.
(v) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularization.
(vi) After rendering three years' continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group 'D' employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/ Flood Advance on the same conditions as are applicable to temporary Group 'D' employees, provided they furnish two sureties from permanent Government servants of their Department.
(vii) Until they are regularized, they would be entitled to Productivity Linked Bonus/ Ad-hoc bonus only at the rates as applicable to casual labourers.
6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers.
7. Despite conferment of temporary status, the services of a casual labourer may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wages for the notice period will be payable only for the days on which such casual worker is engaged on work.
...................."
In para 5 of the above quoted OM, benefits admissible to a Temporary Status Worker are spelt out. They do not include entitlement to post retirement pension. Para 6 makes it clear that no benefits other than those specified above will be admissible to Casual Labourers with temporary status. Thus, as per the OM of 10.09.1993, the Temporary Status Workers are not entitled to pension.
7 OA 1390/20216.3 The applicants have relied on Chapter-6 of Swamy's Handbook on Pension Compilation, which reads as follows :-
" Pension is admissible to permanent employees who retired or are retired with a qualifying service of not less than ten years. Temporary employees who retire on superannuation or invalidation after rendering not less than ten years of service or retire voluntarily after 20 years' continuous service are also eligible for pension."
The issue of equivalence of Temporary employees and casual labour with temporary status has been gone into in detail in the judgment of the Hon'ble Supreme Court in General Manager, North West Railway & Ors. vs. Chanda Devi SLP (Civil) No. 23737/2005 . In paras 23, 24, 25, 26 and 27 of the said judgment, the Hon'ble Supreme Court has observed as follows :-
"....................
23. The Gujarat High Court in Rukhiben Rupabhai (supra), no doubt on analyzing the scheme filed before this Court, opined :
"32. This change has been made by Railways after the Apex Court decision in Inder Pal Yadav case (supra). The original definition `temporary railway servant' is clear, but in the above quoted definition in Clause (1501), Railways have included the `casual labour with temporary status', thereby, taking them out from the category of "temporary railway servant". How and why this change has been made, what procedures were adopted for making the change, there is no whisper, although, this change has grievously affected the casual labour becoming temporary on completion of 360 days continuous employment, and committed breach of the Apex Court's decisions in Inder Pal Yadav case (supra) followed by Dakshin Railway Employees case (supra), making casual labour `temporary railway servant'. Since there exists only four categories, namely, (1) permanent, (2) temporary (3) casual labour and (4) substitutes, casual labour, under the original scheme approved in cases referred to hereinbefore, becomes `temporary railway servant', after completion of 360 days' continuous employment, therefore, he cannot be made `casual labour with temporary status' by subsequent gerrymendering by the Railways by its Circular dated 11th September 1986, which was not brought to the notice of the Apex Court in Dakshin Railway Employees case (supra). Therefore, this Circular has no legal sanction, against the Apex Court decisions in Inder Pal Yadav case (supra), contrary to original scheme and as such, hit by Articles 14, 16, 21, 41/42 of the Constitution of India."
but evidently the provisions of the Railway manual were not considered in their proper perspective.
What has been considered therein was that the Railway Manual should be given effect to as it governs the terms and conditions of service of the employees working under the Railway Administration. A scheme when engrafted in a rule must be read in the context in which the same was done. This Court while accepting the scheme, nowhere 8 OA 1390/2021 suggested that the amendments made in the Railway Manual would be of no effect. Even otherwise the same could not have been done.
24. In absence of any statutory rules framed, executive instructions can be issued in relation to the matter governed by the constitutional provisions. In Khem Chand (supra), this Court had noticed the relevant constitutional provisions and opined that the Railway Manual was an amalgam of various circulars issued from time to time. Such executive instructions or rules framed would be statutory in nature.
25. Mala fide cannot be attributed to a legislation. It is only its validity, that can be challenged. In these cases, validity of the Rules were not under challenge.
26. The Gujarat High Court in our opinion therefore, committed a fundamental error in opining otherwise. It failed to notice that when casual labour has been excluded from the definition of permanent or temporary employee, he with temporary status could not have become so and there is no legal sanction therefor. It is for the legislature to put the employees to an establishment in different categories. It may create a new category to confer certain benefits to a particular class of employees. Such a power can be exercised also by the Executive for making rules under the proviso appended to Article 309 of the Constitution of India. Dakshin Railway Employees Union, Trivandrum Division Vs. General manager, Southern Railway and Others [(1987) 1 SCC 677] whereupon reliance has been placed by the Gujarat High Court in Rukhiben Rupabhai (supra) does not lead to the said conclusion as was sought to be inferred by it. The question therein was as to whether any direction was to be issued to include the petitioners therein in the scheme for absorption as formulated pursuant to the directions of the Court.
27. What was protected by conferring temporary status upon a casual employee was his service and by reason thereof the pension rules were not made applicable. A workman had not been and could not have been given a status to which he was not entitled to.
........................"
As per the ratio laid down by the Hon'ble Supreme Court, temporary employees and casual labour with temporary status are distinguishable from each other and the latter have no claim to pension.
The abovequoted judgment, which had specifically held the Gujarat High Court's judgment in Rukhiben Rupabhai in error in determining that grant of temporary status to a casual employee entitled him to be considered a temporary employee for pensionary benefits, was apparently not brought to the notice of this Tribunal which relied on the said judgment of Gujarat High Court in OA no. 788/2014. In view of the aforesaid judgment of the Hon'ble Supreme Court in Chanda Devi (Supra), the judgment of this Tribunal in OA 9 OA 1390/2021 no. 788/2014 or of Gujarat High Court in Rukhiben Rupabhai (supra) renders no assistance to the petitioner's contention that a Temporary Status Worker per se is entitled to pension.
6.4 As far as regularization of the services of the original applicant, a Temporary Status Worker is concerned, the relevant provisions in DoP&T OM of 10.09.1993 are as follows:-
"8. Procedure for filling up of Group 'D' posts
(i) Two out of every three vacancies in Group 'D' cadres in respective offices where the casual labourers have been working would be filled up as per extant recruitment rules and in accordance with the instructions issued by Department of Personnel and Training from amongst casual workers with temporary status. However, regular Group 'D' staff rendered surplus for any reason will have prior claim for absorption against existing/ future vacancies. In case of illiterate casual labourers or those who fail to fulfill the minimum qualification prescribed for post, regularization will be considered only against those posts in respect of which literacy or lack of minimum qualification will not be a requisite qualification. They would be allowed age relaxation equivalent to the period for which they have worked continuously as casual labourer."
In terms of the abovequoted provision, the original applicant in this OA should have been considered along with other Temporary Status Workers for regularization against regular vacancy in Group 'D' posts after acquiring temporary status.
For regularisation/ absorption of contract labour the ratio laid down by the Hon'ble Supreme Court in Uma Devi (supra) holds the field. Relevant extracts from this judgement are reproduced below :-
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of 10 OA 1390/2021 regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
45. It is also clarified that those decisions which run counter to the principle settled in this decision,or in which directions running counter to what we have held herein, will stand denuded of their status as precedents."
Admittedly, the respondents initiated the process of formulating a policy for regulation of casual labour in accordance with the directions quoted above. However, it took the respondents seven years after passing of the above judgment by the Hon'ble Supreme Court to implement the policy formulated in compliance of the Hon'ble Supreme Court's judgment. This inordinate delay resulted in denial of regularization of the original applicant's services. The original applicant continued in service till 30.11.2010. Had the Hon'ble Supreme Court's judgment in Uma Devi (supra) delivered in 2006 been implemented within a reasonable time, the services of the original applicant would have been regularized before he was discharged from service on attaining the age of superannuation.
6.5 At this stage, it is also apt to quote the judgment of Hon'ble Supreme Court in Yashwant Hari Katakkar vs. Union of India & Ors. reported in 1996 SCC (L&S) 464 :-
11 OA 1390/2021
"3. ....................................It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the Government. 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 this case we hold that the appellant shall be deemed to have become permanent after he served the Government for such a long period. The services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits. ........................................"
In light of the discussion above, the Tribunal holds the respondents in error in not implementing the judgment of the Hon'ble Supreme Court in Uma Devi (supra) within a reasonable period and also holds that the appellant shall be deemed to have become permanent after he served the Government for a period of over two decades, first as a Casual Worker and then as a Temporary Status Worker. He shall be entitled to the pensionary benefits and his family to family pension as per rules. It is made clear that no arrears for services rendered by the original applicant prior to his retirement are to be paid.
Respondents are accordingly directed to treat the applicant as having retired on 30.11.2010 from a pensionable service of the Government and his case for grant of pension and the case for grant of family pension to eligible family member shall be finalized by the respondents, within a period of 06 (six) months from the date of receipt of a certified copy of this order in their office.
7. OA stands disposed of. No order as to costs.
(Suchitto Kumar Das) Administrative Member sl