Central Administrative Tribunal - Mumbai
Saida Bi Sk Usman vs M/O Railways on 1 February, 2018
1 OA No.668/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No. 668 OF 2014
Dated this Thursday, the 01st day of February, 2018
CORAM: HON'BLE SHRI ARVIND JAYRAM ROHEE, MEMBER (JUDICIAL)
1. Saida bi Sk. Usman
W/o Sk. Usman Sk. Subha
Age :- 65 Years &
2. Shaikh Aziz Shaikh Usman
S/o Shaikh Usman,
W/o Sk. Usman Sk. Subha
(Date of Birth : 01.06.1975),
Unemployed,
And Residing at : Zopadpatti,
Near Iron Gate, Kandari Plot,
Kandari, Bhusawal
Dist : Jalgaon.
State of Maharashtra,
Pin Code 425 201. ....Applicants
(By Advocate Ms. Vaishali Agane)
VERSUS
1. The Union of India,
Through : The General Manager,
Central Railway, CSTM,
Mumbai 400 001.
2. The Divisional Railway Manager,
Central Railway, Bhusawal Division,
Bhusawal 425 201. ... Respondents
(By Advocate Shri R.R.Shetty)
OA filed on 28.08.2014
Order reserved on 24.01.2018
Order delivered on 01.02.2018
2 OA No.668/2014
O R D E R
The widow and the son of the deceased employee approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking family pension and compassionate appointment respectively as mentioned in the paragraph No.8 of the OA. The same is reproduced here for ready reference :-
"8(a). That the Hon'ble Tribunal may be graciously pleased to call for the records of the case from the Respondents and after examining the same it may be declared that the order dated 09.08.2012 & 18.12.2013 are illegal and should be quashed.
(b) It may be declared that the deceased employee already attained a temporary status per Rules before 1986.
(c) It may be declared that the Applicant No.2 is legally entitled to be offered compassionate appointment and grant the same forthwith.
(d) Grant a family pension from the date of death of deceased employee (i.e. 02.06.1991) to the applicant No.1.
(e) Grant cost & grants any other further relief in the nature of circumstances of the case as the Hon'ble Tribunal deem it fit & proper."
2. The deceased Shaikh Usman S/o Shaikh Subha was engaged as Casual Labourer in Bhusawal Division of Central Railway with effect from 19.06.1973. After rendering 3 OA No.668/2014 continuous service of 180 days, a temporary status of Monthly Rated Casual Labourer (for short 'MRCL') was conferred on him with effect from 19.03.1985. After rendering service in the said capacity till 18.11.1986, the deceased employee, thereafter, remained absent and did not resume duty till his death on 02.06.1991.
3. It is stated that after death of the employee, the applicants did not receive service benefits, accidental benefit nor compassionate appointment was offered to the applicants. Hence, a representation was made by them to the respondent No.2 in the year 1995. In response to letter dated 19.06.1998 issued by the respondents, the applicants forwarded the requisite documents asked for and thereafter, they were waiting for the order from the respondents. However, since nothing was heard from the other end, on 23.07.2012, the applicant No.1 sought information under Right to Information Act 2005. She was informed vide impugned order dated 09.08.2012 (Annexure A-1) that her representation dated 30.06.1998 was already 4 OA No.668/2014 considered and rejected vide reply dated 15.01.1999, which was communicated to her. According to the applicants, no such reply was received by them and hence they approached the Higher Authority. However, the request was not favourably considered and vide impugned order dated 09.08.2012 (Annexure A-1), they were informed that although the deceased employee was working as MRCL and expired on 02.06.1991, he remained absent from duty from 27.12.1986 till his death. It is also informed that there is no provision for grant of compassionate appointment to the wards of MRCL Railway Employees.
4. In this OA, the impugned order has been challenged on the following grounds as mentioned in paragraph No.5 of the OA. The same are reproduced here for ready reference :-
"5(a).The Respondents violated the Rule 2501 of Indian Railway Establishment Manual. As per Rules 2501 of Indian Railway Establishment Manual provides grant of temporary statues to the casual labour employee after six months of continuous service.
(b) The Respondents violated the Rules 2001 of Indian Railway Establishment Manual. As Per Rules 2001 (b) those causal labour engaged in 5 OA No.668/2014 open line works, who continue to do the same work which they were engaged or other work of the same type for more than 120 days without break will be treated as temporary (i.e. given "temporary status") on completion of 120 days of continuous employment.
(c) The Respondents violated the Rules 2511 of Indian Railway Establishment Manual. The Respondents has failed to issue the chargesheet & conduct the inquiry. Consequently the deceased employee died in service. Hence, as per the Rules rejection of the compassionate appointment and family pension by the impugned order is illegal.
(d) The Respondents violated the Rule (XI)
(b) of Master Circular No.16 the General Manager has Discretionary power to grant compassionate appointment to ward / widow of Casual Labourer with temporary status.
(e) The Applicants are maintaining themself Below-Poverty-Line.
(f) Non-grant of compassionate appointment and family pension is violation of Art.
14 & 16 of the Constitution of India.
(g) Non-grant of family pension and compassionate appointment is violating of Supreme Court judgment reported in SLJ 1984 Vol. I 116 Ram Kumar & Ors Vs. Union of India."
5. On notice, the respondents by a common reply dated 20.08.2015 resisted the OA and denied all the adverse averments, contentions and grounds raised therein. According to the respondents, although temporary status was conferred on the deceased employee, he remained absent for more than three months unauthorizedly and he was not absorbed in 6 OA No.668/2014 regular post after due screening. Hence, there is no question of grant of family pension to the applicant No.1 or compassionate appointment to the applicant No.2, since this is not permissible as per the Rules.
6. In the reply, reliance was placed on the Railway Board RBE No.251/1988 dated 01.11.1988, a representation dated 19.09.1995 submitted by the applicant No.1, a copy of letter dated 15.01.1999 by the respondents informing the applicant No.1 in reference to her representation dated 19.09.1995 that since the deceased employee has lost the temporary status on account of his unauthorized absence, the claim for compassionate appointment cannot be considered. The same reply was given to the applicant No.1 again vide letter dated 09.08.2012. As such, the applicants are not entitled to any relief and the OA is liable to be dismissed.
7. On 24.01.2018, when the matter was called out for final hearing, heard Ms. Vaishali Agane, learned Advocate for the applicants and the reply arguments of Shri R.R.Shetty, learned Advocate for the 7 OA No.668/2014 respondents.
8. I have carefully gone through the pleadings of the parties and various office orders / documents filed by the applicants at Annexures A-1 to A-17 including series of representations and the documents produced by the respondents along with their reply at Annexures R-1 to R-5.
FINDINGS
9. The only controversy involved for resolution of this Tribunal in this present OA is whether the impugned order passed by the respondents rejecting the claim is liable to be set aside as illegal, improper or incorrect on the grounds raised by the applicant in the OA.
10. As stated earlier, it is not disputed that after rendering service as Casual Labourer for over 14 years, MRCL status was conferred on the deceased employee on 03.12.1985 as per the provisions of paragraph No.2511 of Indian Railway Establishment Manual (for short 'IREM'). Hence, as per rules, the deceased employee was thereafter, entitled to be considered for absorption in regular post 8 OA No.668/2014 of group 'D' after screening. However, before the said exercise was undertaken, the deceased employee remained unauthorizedly absent from duty with effect from 19.11.1986 and unfortunately while on unauthorized absence, he died on 02.06.1991. It is, thus, obvious that only MRCL status was conferred on the deceased employee and he was not absorbed in regular group 'D' post.
11. However, in this respect, the learned Advocate for the applicant relied on the provisions of clause (xi) of Masters Circular No.16 issued by the Railways on 12.12.1990 vide Annexure A-14 on the subject "appointment on compassionate ground" and submitted that although the deceased employee died with MRCL status after rendering service as Casual Labourer, his ward / widow is entitled for compassionate appointment. The provisions of clause (XI) are reproduced here for ready reference :-
"XI. Compassionate appointments of the ward / widow of casual labour :
(a) The General Managers have powers to consider and decide requests for appointment on compassionate grounds of the wards / widow of a causal labour who dies due to accident while on duty provided the casual labourer concerned is eligible for 9 OA No.668/2014 compensation under the Workmen's Compensation Act, 1923. Such appointments should be as causal labour (fresh face) or substitute.
(b) Similar consideration may also be shown to a ward / widow of a casual labour with temporary status at the discretion of the General Manager.
(c) This power should be exercised by the General Manager personally and should not be delegated to any authority. This power should be exercised judiciously keeping in view the particular need to contain the total casual labour force.
[No.E(NG)/II/84/CL/28 dated 4.5.1984, 31.12.1986, 13.3.1987 and 6.12.1989]"
12. As stated earlier, the compassionate appointment cannot be claimed as of right and it is solely within the discretion of the General Manager, on satisfaction that the family left by deceased employee was residing in indigency.
13. Although existence of the above provisions are not disputed by the respondents, it is submitted by the learned Advocate for the respondents that on account of unauthorized absence from 19.11.1986 onwards till his death for about five years, the deceased employee lost the MRCL status and hence, there is no question of considering his claim for compassionate appointment. In this 10 OA No.668/2014 respect, the respondents relied on RBE No.251/1988 dated 01.11.1988 under the caption "increase in the upper limit of authorized absence of Project Casual Labourer". For the sake of convenience and ready reference, the entire text is reproduced here :-"RBE No.251/88
Subject : Increase in the upper limit of authorized absent of project causal labour.
No.E(NG)II-88/CL/18 dated 1-11-1988.
Attention of the Railway Administrations is invited to the instructions contained in this Ministry's letter No.E(NG)II-76/CL/116 dated 21.3.1977 in terms of which authorized absence of casual labour upto a period of twenty days will not constitute a break in service for purpose of reckoning continuous employment, which is one of the criteria for determining eligibility for grant of temporary status. This includes also a period of upto three days of unauthorized absence vide Ministry's letter No.E(NG)II-79/CL/26 dated 28-7-
1973.
2. Pursuant to certain demands made by the ALF in the PNM meeting about terms of employment of causal labour a separate meeting was held with the said federation on 15/16-6-88. In the course of discussion in this meeting, the Federation pointed out that the period of 20 days referred to above require to be suitably revised upwards in the causal labour, having regard to the fact that they become entitled to the minimum of the scale only after completing 180 days of continuous employment and again they are eligible for temporary status only on completion of 360 days of contentions employment.
5. The matter has been examined by the Ministry of Railways in the light of the points urged by the Federation. The Ministry have now decided that in the case of project causal labour, the upper limit of twenty days (inclusive of three days 11 OA No.668/2014 unauthorized absence) should be raised to thirty days (inclusive of three days on authorized absence).
4. These instructions will take effect from st 1 October, 1988.
5. This issues with the concurrence of the Finance Directorate of the Ministry of Railways."
14. It is, thus, obvious that same rule will be applicable to Casual labourer working in the open line. As per the above provisions, the Causal Labourer or MRCL can remain absent from duty for 20 days only inclusive of three days unauthorized absence. It is obvious that the deceased employee continuously remained absent for about five years, which fact is not disputed by the applicants and hence, he lost the temporary status as MRCL. As such, there is no question of considering the claim of applicant No.2 for compassionate appointment.
15. During the course of the arguments, the learned Advocate for the respondents further submitted that even after the death of the deceased employee, the first representation was made on 19.09.1995 i.e. after more than four years and it is obvious that during this period the family left by the 12 OA No.668/2014 deceased employee could survive. Even after reply of the respondents in the year 1999 to the aforesaid representation, no steps were taken by the applicants till they took recourse to the provisions of RTI Act on 23.07.2010. Although it may be said that the applicants did not receive the reply / communication dated 15.01.1999, it is obvious that the family could survive till they receive the impugned orders. As such, this Tribunal finds substantial force in the contentions of the learned Advocate for the respondents that it cannot be inferred that after death of the deceased employee, the family was in indigent condition and unable to survive.
16. During the course of the arguments, the learned Advocate for the applicants relied upon the decision rendered by the Hon'ble Supreme Court in Inder Pal Yadav Vs. Union of India, Writ Petition No.147, 320, 369, 454, 4335 and 4434 of 1983 decided on 18.04.1985, it was a case under Labour and Industrial Law regarding retrenchment. A reference to Railway Board circular dated 01.06.1984 is 13 OA No.668/2014 made therein regarding grant of temporary status to the Causal Labourer employed on projects on completion of 360 days of continuous employment. As such, the issue that whether wards of Causal Labourer can apply for compassionate appointment was not involved in the said case nor there is any decision on that point.
17. A reliance was also placed on another decision rendered by the Hon'ble Supreme Court in Ram Kumar and others Vs. Union of India and others, 1996 (1) All India Services Law Journal 116. However, in that case, the question for consideration was whether Casual Labourers working in 'C' category can be considered for regularization after screening in group 'D'. In the present case, the issue is regarding grant of compassionate appointment and since the deceased employee died without appearing for screening due to his longstanding continuous absence, he could not be absorbed / regularized in group 'D' post. As such, it is not necessary to consider this aspect in more details.
18. Now the question for consideration is 14 OA No.668/2014 whether the applicant No.1 being widow of the deceased employee is entitled to family pension. In the decision relied upon by the applicant namely Ram Kumar and others (supra), a direction was issued to the Railway Board to consider if the temporary status employees, who approached the Hon'ble Supreme Court can be granted pension on superannuation or otherwise. However, it is pointed out by the learned Advocate for the respondents that the benefit of pension is not available to the temporary status employee unless they are regularly absorbed in group 'D' and then the period of service rendered by them on temporary status can be counted along with the period of service rendered by them after absorption / regularization till their superannuation for pension purposes. However, in the present case, as stated earlier, the deceased employee did not move beyond temporary status. As such, there is no question of considering the service rendered by the deceased employee for grant of family pension to the applicant No.1. In this respect, the provisions of paragraph 2511 are 15 OA No.668/2014 also material in which it is stated that the service rendered as Casual Labourer before completion of 180 days of continuous service will not be liable to be counted for the purposes like reckoning of retirement benefits. However, as per the Pension Rules, unless the employee complete minimum qualifying service of ten years under temporary status or on absorption / regularization in service, he is not entitled to pension. Hence, there is no question of granting family pension to the applicant No.1 since although deceased employee working for more than 12 years as Casual Labourer, that period cannot be counted as qualifying service for pension as stated in paragraph No.2511 of IREM and the period of service rendered by him as MRCL / temporary status is from 03.12.1985 to 18.11.1986 i.e. less than one year and thereafter he continuous remained absent and did not resume the duty till his death. As such, there is no question of grant of family pension to applicant No.1.
19. From the above discussion, it is obvious that on both the counts, the 16 OA No.668/2014 applicants failed to establish their claim. It cannot be said that the impugned order rejecting the claim is any manner illegal, improper or incorrect, which is liable to be quashed by exercising the power of judicial review vested in this Tribunal.
20. In the result, this Tribunal does not find merit in the present OA. The OA, therefore, stands dismissed.
21. However, in the peculiar facts and circumstances of the case, the parties are directed to bear their respective costs of this OA.
22. Registry is directed to forward certified copy of this order to both the parties at the earliest.
Place : Mumbai (Arvind J. Rohee) Date : 01st February, 2018 Member (Judicial) kmg*