Central Administrative Tribunal - Ernakulam
Original Application No. ... vs Union Of India on 13 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00956/2015
Original Application No. 180/00977/2015
Original Application No. 180/00189/2016
Original Application No. 180/00192/2016
Original Application No. 180/00246/2016
Original Application No. 180/00247/2016
Original Application No. 180/00258/2016
Original Application No. 180/00285/2016
Original Application No. 180/00289/2016
Original Application No. 180/00931/2016
Monday, this the 13th day of March, 2017
CORAM:
HON'BLE MR. U. SARATHCHANDRAN, JUDICIAL MEMBER
1. Original Application No. 180/00956/2015 -
A. Lawrence, Sarang (Retd.), Office of the Deputy Chief Engineer,
Southern Railway, Quilon, Residing at Shobhana Mandiram,
Aged 73 years, S/o. Augustine, Perumon PO, Perunad,
Quilon. ... Applicant
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, represented by General Manager,
Southern Railway, Chennai.
2. Deputy Chief Personal Officer, (Construction),
Southern Railway, Chennai.
3. The Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum. ... Respondents
(By Advocate : Mrs. K. Girija)
2. Original Application No. 180/00977/2015 -
K.P. Kuttiyamma, Senior Track women (Retd.),
Kumnathett House, Kanakkary PO, Kottayam. ... Applicant
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, represented by Chief Personnel Officer,
Southern Railway, Chennai.
2. Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum.
3. Deputy Chief Engineer (Construction),
Southern Railway, Trivandrum Division,
Trivandrum. ... Respondents
(By Advocate : Mrs. K. Girija)
3. Original Application No. 180/00189/2016 -
M.V. Mary, Gangwomen (Retd.), Southern Railway,
Padipurakkal House, Mulanthuruthy, Ernakulam. ... Applicant
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, rep. by Chief Personnel Officer,
Southern Railway, Chennai-1.
2. Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum-1.
3. Deputy Chief Engineer, (Construction),
Southern Railway, Trivandrum Division,
Trivandrum-1. ... Respondents
(By Advocate : Ms. P.K. Radhika)
4. Original Application No. 180/00192/2016 -
P.A. Sherifa Beevi, Senior gang women (Retd.),
Chakkalaparambil House, Near MES College,
Marampilly PO, Ernakulam. ... Applicant
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, rep. by Chief Personnel Officer,
Southern Railway, Chennai-1.
2. Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum-1.
3. Deputy Chief Engineer, (Construction),
Southern Railway, Trivandrum Division,
Trivandrum-1. ... Respondents
(By Advocate : Mrs. K. Girija)
5. Original Application No. 180/00246/2016 -
P.T.Annamma,Senior Track women (Retd.),
Southern Railway, ponnattil Thalakkal House,
Athirampuzha PO, Kottayam. ... Applicant
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, rep. by Chief Personnel Officer,
Southern Railway, Chennai.
2. Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum.
3. Deputy Chief Engineer, (Construction), Southern Railway,
Trivandrum Division, Trivandrum. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
6. Original Application No. 180/00247/2016 -
Nabeesa P.K.,Track women (Retd.),Southern Railway,
Plamthadam House, Erumpayam PO, Kottayam,
Pin - 686 609. ... Applicant
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, rep. by Chief Personnel Officer,
Southern Railway, Chennai.
2. Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum.
3. Deputy Chief Engineer, (Construction), Southern Railway,
Trivandrum Division, Trivandrum. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
7. Original Application No. 180/00258/2016 -
P.K. Kunjappan, Mistry, Gangmate (Retd.), Southern Railway,
Pekkal House, Mulanthuruthy PO, Ernakulam. ... Applicant
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, rep. by Chief Personnel Officer,
Southern Railway, Chennai.
2. Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum.
3. Deputy Chief Engineer, (Construction), Southern Railway,
Trivandrum Division, Trivandrum. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
8. Original Application No. 180/00285/2016 -
K. Sudhakaran, Store Watchman (Retd.), Southern Railway,
Seema Vilasom, Avaneeswaram RSPO, Quilon. ... Applicant
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, rep. by Chief Personnel Officer,
Southern Railway, Chennai.
2. Senior Divisional Personnel Officer, Southern Railway,
Madurai Division, Madurai. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
9. Original Application No. 180/00289/2016 -
Bawa Kunju M., Senior Tack Man (Retd.), Southern Railway,
Madurai Division, Section Engineer, Thenmala. ... Applicant
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, rep. by Chief Personnel Officer,
Southern Railway, Chennai.
2. Senior Divisional Personal Officer, Southern Railway,
Madurai Division, Madurai - 625 016.
3. Senior Divisional Engineer, Madurai Division,
Madurai. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
10. Original Application No. 180/00931/2016 -
1. C. Venugopal, Senior Track Man (Retd.),
Deputy Chief Engineer's Office, Southern Railway, Ernakulam.
2. M.L. Gracy, Points Man-II, (Retd.), Southern Railway,
Trivandrum Division.
3. Kochunarayana Pillai (Retd.), Watchman-I,
Southern Railway, Trivandrum Division.
4. N.X. Jacob, Senior Track Man (Retd.),
Deputy Chief Engineer's Office, Southern Railway,
Ernakulam. ... Applicants
(By Advocate - Mr. Siby J. Monippally)
Versus
1. Union of India, rep. by Chief Personnel Officer,
Southern Railway, Chennai.
2. Senior Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum. ... Respondents
(By Advocate : Mr. Sunil Jacob Jose)
These applications having been heard on 21.02.2017, the Tribunal on
13.03.2017 delivers the following:
COMMON ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
The common issue involved in these OAs is whether the applicants who initially entered service of the respondent Railways as casual labourers who were later conferred with temporary status and thereafter regularised in the Railway service are entitled to get their entire service including the casual service reckoned for the purpose of pension?
2. When these cases were taken up for final hearing learned counsel for the applicants in these cases submitted that in the light of the decision of the Andhra Pradesh High Court in judgment dated 23.6.2003 in General Manager, South Central Railway, Secunderabad v. Shaik Abdul Khader - 2003 (6) ALT 755 = (2004) ILLJ 714 (AP) wherein it was held that for the purpose of pension casual labourers who were granted temporary status and later absorbed in to regular service are entitled to get their casual service counted in full for the period from which s/he were granted temporary status till regularisation and half the service as casual labourer prior to conferment of temporary status along with the entire period of regular service rendered.
3. Learned counsel for the applicants referred to the order dated 26 th May, 2014 of the Principal Bench of this Tribunal in OA No. 2639 of 2013 and also the judgment dated 10.11.2014 of the Delhi High Court in Union of India & Ors. v. Rem Pal Singh - WP(C) No. 7618 of 2014 and connected cases dated 10.11.2014 and further a decision of the Madras High Court dated 26.10.2016 in Union of India & Ors. v. Registrar, Central Administrative Tribunal, Madras Bench & Ors. in WP No. 36630/2016, following the aforecited judgment of the Andhra Pradesh High Court.
4. Respondents resisted the OA contending that as per para 2005(c) of IREM Volume-II only half of the service rendered after attaining temporary status of the casual labourers before regular absorption will qualify for pensionary benefits. It was also contended by the respondents that as per Rule 3(23) of the Pension rules 'Railway Servant' means a person who is a member of the Railway services or holds a post under the administrative control of the Railway Board and includes a person who is holding the post of Chairman, Financial Commissioner or a Member of the Railway Board but does not include casual labour or persons lent from service or post which is not under the administrative control of the Railway to a service or post which is under such administrative control. Relying on General Manager, North West Railway & Ors. v. Chanda Devi - 2008 (1) SCC L&S 399 respondents point out that the apex court in that case has negated the prayer to grant of pension to the widow of a casual employee and therefore, the case for counting the period of casual labour service of the employees is not legally permissible. It is also contended that there is no Railway Board order to count 100% of casual service for pensionary benefits.
5. Heard Mr. Siby J. Monippally learned counsel appearing for the applicants and Mrs. K. Girija, Ms. P.K. Radhika and Mr. Sunil Jacob Jose, learned counsel appearing for the respondents. Perused the record and copies of the judgments produced by both sides.
6. In Shaik Abdul Khader's case (supra) the Andhra Pradesh High Court has succinctly explained the legal position regarding the claim made by the railway employee in that case. In that judgment Bilal Nazki, J. wrote:
'4. The arguments and counter arguments can be appreciated only after going through the relevant rules. Rule 31 of Railway Services (Pension) Rules, 1993 lays down:
'31. Counting of service paid from contingencies : In respect of a railway servant, in service on or after the 22/08/1969, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to the following conditions, namely:
(a) the service paid from contingencies has been in a job involving whole-time employment;
(b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned as posts of malis, chowkidars and khalasis:
(c) the service should have been such for which payment has been made either on monthly rate basis or on daily rates computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, bears some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments.
(d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break;
Provided that the weightage for past service paid from contingencies shall be limited to the period after 1/01/1961 subject to the condition that authentic record of service such as pay bill, leave record or service book is available.'
5. Subject to conditions laid down in this rule, in respect of a railway servant half of the service paid from contingencies shall have to be taken into account for calculating pensionary benefits on absorption in regular employment. Now the question is, when a person gets a temporary status whether it could be said that he had been absorbed in terms of Rule-31 because after absorption the service shall have to be counted keeping in view Rule-31.
6. Now different provisions of Master Circular No. 54 of 1994 shall have to be gone into to which a reference has been made by the Tribunal. Para-20 of the Master Circular No. 54 lays down:
'20. Counting of the period of service of casual labour for pensionary benefits: Half of the period of service of a casual labour other than casual labour employed on Projects after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 1/01/1981, the benefit has also been extended to Project Casual Labour.'
7. Reference has been made to another extract of para-2005 of Indian Railway Establishment Manual, Volume-II. Sub-para-1 of para 2005(a) lays down:
'Casual labour including Project Casual labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits. This benefit will be admissible only after their absorption in regular employment. Such casual labour, who have attained temporary status, will also be entitled to carry forward the leave at their credit to new post on absorption in regular service. Daily rated casual labour will not be entitled to these benefits.'
8. If this sub-para is read with para-20 and also with Rule-31, there remains no doubt that on absorption whole of the period for which a casual labour worked after getting temporary status would have to be counted and half of the period has to be counted of the period for which a casual labour worked without being absorbed. Once he is given temporary status that means that he has been absorbed in the department. Even para 2005 (a) has been drafted in the same way because of the fact that even such casual labour who have attained temporary status are allowed to carry forward the leave at their credit in full to the new post on absorption in regular service. Therefore, we have no doubt in our mind that once temporary status is granted to a person who is absorbed later on in regular service carries forward not only the leave to his credit but also carries forward the service in full. Half on the service rendered by him as casual labour before getting the temporary status has to be counted. .......................The view taken by us is further strengthened by mandate of Rule-20 of Railway Services (Pension) Rules which lays down:
'20. Commencement of Qualifying service: Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity.
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post.
Provided further that (a.)........
(b)........' Therefore, we hold that the respondent was entitled to get the service counted in full from 1/01/1983. He was also entitled to get half of the service counted before 1/01/1983 from the date he had joined in the railways as casual labour. '
7. Mrs. K. Girija learned counsel for the respondents argued that the casual service of a regularly appointed Railway servant cannot be taken into consideration for the purpose of pension except for 50% of casual service rendered by him/her after conferment of temporary status. Referring to Chanda Devi's decision (supra) she submitted that the apex court had clearly held that the widow of a casual labour with temporary status is not entitled to pension. While pointing out that there is a distinction between the workman with the status of a temporary employee and one as casual labour with temporary status she submitted that the apex court had ruled as follows:
'29. 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.'
8. Shri Siby J. Monippally learned counsel for the applicants submitted that Chanda Devi's decision (supra) of the apex court was duly considered in the judgment of the Delhi High Court in Rem Pal Singh's case (supra) and also in the judgment dated 26.10.2016 of the Madras High Court in Union of India & Ors. v. Registrar, Central Administrative Tribunal, Madras Bench & Ors. in WP No. 36630/2016 (supra) and that both those High Courts have noted that Rule 20 of the Railway Services (Pension) Rules, 1993 has not been considered in the Chanda Devi (supra) judgment.
9. Rule 20 of Railway Services (Pension) Rules, 1993 reads:
' 20. Commencement of qualifying service- Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post: Provided further that -
(a) in the case of a railway servant in a Group D service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose; and
(b) in the case of a railway servant not covered by clause (a), service rendered before attaining the age ofeighteen years shall not count, except for compensation gratuity.
(Authority: Railway Board's letter No. F(E)III/99/PN 1/(Modification) dated 23.5.2000)
(c) the provisions of clause (b) shall not be applicable in the cases of counting of military service for civil pension under rule 34. (Authority: Railway Board's letter No. F(E)III/2004/PN1/21(Amendment) dated 7.12.2004)' It has to be noted that the Andhra Pradesh High Court in Shaik Abdul Khader's case (supra), the High Court of Delhi in Rem Pal Singh's case (supra) and the Madras High Court in Union of India & Ors. v. Registrar, Central Administrative Tribunal, Madras Bench & Ors. in WP No. 36630/2016 (supra) have brought Rule 20 of the Railway Services (Pension) Rules, 1993, para20 of Master Circular and para 2005 of the IREM to a sharp focus. The Delhi High Court in Rem Pal Singh's case (supra) said:
'7. The proviso, in our opinion, puts the controversy beyond a shade of doubt in that if an employee officiates in service or is treated as temporary railway servant and subsequently regularized or granted substantive appointment, the entire period of his combined service as temporary appointee followed by the service spent as a permanent employee has to be reckoned for the purpose of pension. Since Rule 20 does not deal with what is to be done with the period of service spent as casual labourer, para 20 of the Master Circular 54 and para 2005 of the IREM address the said issue. Being administrative instructions, they clarify that half the period spent as casual labourers would be eligible to be reckoned for purpose of pension.'
10. Therefore, in the light of the judgments of the Andhra Pradesh High Court, Delhi High Court and Madras High Court this Tribunal is of the opinion that the dicta laid down in those judgments have to be followed in these cases also. As those judgments arose out of the orders of the respective co-ordinate benches of this Tribunal, those judgments are binding on this Tribunal. Accordingly, this Tribunal proceeds to pass the following order:
The OAs are disposed of with a direction to the respondents to consider, in the light of the above discussion of law, reckoning 100% of the service rendered by the applicants as casual labour with temporary status and 50% of their service rendered as casual labour, along with their regular service, for calculating the the grade pay and average emoluments and also for determining the pension and other pensionary benefits including gratuity and to issue revised Pension Payment Orders within two months from the date of receipt/presentation of a copy of this order. Ordered accordingly. Parties shall suffer their own costs.
11. Registry is directed to incorporate a copy each of this order in the files of the OAs captioned above.
(U. SARATHCHANDRAN) JUDICIAL MEMBER ''SA''