Central Administrative Tribunal - Chandigarh
Santa Devi vs M/O Railways on 5 October, 2023
1- O.A. No. 060/1351/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/1351/2019
Pronounced on:05.10.2023
Reserved on: 29th August 2023
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Santa Devi w/o Late Sh. Teejbir Singh, Group-D, aged....years r/o 442/4
Railway Colony, Ambala Cantt (Haryana)-133001.
....Applicant
(By Advocate: Mr. Karnail Singh)
Versus
1. Union of India, through General Manager, Northern Railway, Baroda
House, New Delhi - 110001.
2. Divisional Railway Manager, Northern Railway, Ambala Cantt-
133001.
3. Financial Advisor and Chief Accounts Officer/Pensions, Northern
Railway, Baroda House, New Delhi -110001.
... .Respondents
(By Advocate: Mr. B.B. Sharma)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
(i) To quash and set aside the impugned order dated 21.05.2019 and the impugned railway Board order RBE No. 167/1986 dated 11.09.1986 in terms of para 5.1 of SC judgment in the case of Inder Pal Yadav.
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(ii) To issue directions to respondents to reconsider the case of applicant for treating the deceased as a Temporary employee or deemed regularized employee.
(iii) To grant all the benefits as granted to the family of the deceased Railway employee like DCRG, leave encashment, family pension and its arrears with.
2. The facts of the case, as pleaded by the applicant, are that she is the legally wedded wife of late Sh. Teejbir Singh, who expired on 19.05.1992 while in service as Gangman under Respondent No. 3. The husband of the applicant joined the railway service as a casual worker on 15.09.1984. His services were de-casualized and treated as a temporary employee w.e.f. 15.09.1985 in the scale of Rs.200-250 per month, vide Railway Board order No. RBE 167/1986 (Annexure A-1) in accordance with the judgment of the Hon‟ble Supreme Court in the case of Inder Pal Yadav Vs. Union of India and Others, 1985 SCC (2)
648. It has been submitted that the applicant‟s husband was medically examined for the purpose of screening for the post of Gangman vide certificate dated 127283 dated 13.12.1989 declaring the deceased employee fit for medical category of B-1 for such appointment. He died on 19.05.1992. The applicant approached the respondents vide representation dated 09.10.1992 (Annexure A-2 colly)for grant of death claim and pension. The applicant was granted appointment on compassionate grounds. It has been alleged that the respondents have tampered with the entry no. 9 in the end of the service record of the deceased showing him as unscreened worker by adding the word "not" and by deleting the words "but result awaited" to deprive the applicant from DCRG and the pensionary benefits. In similar cases, the benefit of 3- O.A. No. 060/1351/2019 family pension and DCRG has been granted. The applicant represented for grant of family pension and DCRG vide letter dated 10.12.2018 (Annexure A-2 colly) which has been declined vide order dated 21.05.2019 (Annexure A-1).
3. It has been contended that the applicant has rendered about 08 years of service to the respondent department, whereas one year service is required for granting family pension as per Family pension Rules for the Railway Servants 1964. Reliance has been placed upon judgment of the Hon‟ble Supreme Court in the cases of Inder Pal Yadav Vs. Union of India 1985 SCC (2) 648, Union of India (Railway) & Others Vs. Basant Lal & Others, 1993 AIR 188, and Hon‟ble Punjab and Haryana High Court in the case of Jaspal Kaur Vs. UT Chandigarh, 2012 (4) RSJ 309.
4. The respondents have filed written statement contesting the claim of the applicant. The preliminary objection with regard to limitation has been raised by the respondents. It has been stated that the applicant has challenged the Railway Board‟s circular dated 11.09.1986 in the year 2019. Also, the applicant‟s husband died in the year 1992 while working as casual labour with temporary status. The deceased was never screened and the cause of action, if any, accrued in the year 1992 whereas the applicant filed the present application has been filed on 15.12.2019 after an inordinate delay of 27 years. The representation /legal notice and its rejection would not either revive or extend the limitation. Reliance has been placed on judgments of the Hon‟ble Supreme Court in the cases of Ajit Singh Thakur Vs. State of Gujrat, AIR 1981 SC 733 and S.S. Rathore Vs. State of Madhya Pradesh, SLJ 1990 (1) SC 98.
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5. It has also been stated that the applicant has no locus standi to challenge the order dated 11.09.1986 as the deceased during his life time did not question the same nor was he covered under the said scheme approved by the Hon‟ble Apex Court in the case of Inder Pal Yadav (supra) as the decision was rendered in respect of the casual labourers working on the project and were in service as on 01.01.1981, whereas the deceased was neither working on any project nor was in service as on the cut-off date i.e. 01.01.1981. The deceased was engaged as a casual labour on 15.09.1984. However, the temporary status was granted w.e.f. 15.09.1985 and mere working as a casual labourer would not entitle him to claim regularization. It has been stated that the applicant was never screened and the scheme of family pension is not applicable to the unscreened employees, as per the Railway Services (Pension) Rules 1993. The applicant was medically examined on 13.12.1989 for re-engagement of casual labour as Gangman on the basis of past casual labour service.
6. It has categorically been denied that the entry no. 9 has been tampered with and it has been stated that there was an inadvertent error in the entry and the same was corrected later duly initialled by the same officer. It has further been elaborated that while completing the record, the entries in the service report were made and the inadvertent mistakes that crept in while recording the entries no. 2, 9 and 10 were corrected simultaneously. The applicant has been paid the admissible benefits i.e. DCRG amounting to Rs.1307/- and accident compensation amounting to Rs.85,428/-. While releasing the gratuity on 13.03.2003, it was communicated that the deceased was an unscreened employee and the family pension scheme does not apply to the unscreened 5- O.A. No. 060/1351/2019 employees. While making this averment, it has been contended that the applicant was aware of the fact as back as in 2003 and the entry no. 9 of the service book of applicant‟s husband has correctly been made that "he was not screened". On these grounds, the respondents have prayed for dismissal of the Original Application.
7. The applicant has filed rejoinder. It has been stated that the case of the applicant pertains to release of family pension which is a recurring cause of action and therefore, law of limitation does not apply to this. Reliance has been placed upon judgments of the Hon‟ble Supreme Court in the cases of Union of India and Others Vs. Tarsem Singh, 2008 (8) SCC 648, Shiv Dass Vs. Union of India and Others, 2007 (9) SCC 274
8. I have gone through the pleadings and considered the rival contentions raised by learned counsel for both sides.
9. Admittedly, the applicant‟s husband was engaged as a casual labour on 15.09.1984 and was granted temporary status w.e.f. 15.09.1985 and he worked as casual labour till his death in accident on 19.05.1992. The applicant herein is the wife of deceased employee who has come with two-fold prayer (i) to treat her deceased husband as temporary employee/deemed regularized while quashing the order RBE No. 167/86 (ii) to grant her all the consequential benefits like DCRG, leave encashment and family pension and its arrears. The question which arises for consideration is as to whether the deceased employee is entitled for deemed regularization entailing consequential benefits to the applicant. The determination of 2nd relief is dependent upon the decision of 1st issue. If 1st issue is established in favour of the applicant, only then the 2nd claim of family pension can be considered.
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10. Learned counsel for the applicant argued that the deceased employee was entitled to regularization as per the judgment of the Hon‟ble Supreme Court in the case of Inder Pal Yadav (supra), but the respondents vide impugned order RBE No. 167/86 dated 11.09.1986 have arbitrarily modified the cut-off date from 01.01.1984 to 01.01.1981. I have gone through the impugned order dated 11.09.1986. The relevant contents of the aforesaid impugned order are reproduced hereunder:-
"The scheme outlined in para 5.1 of the Ministry of Railways letter of even number dated 1.6.84 read witht he letter dated 25.6.84 for treating Project casual labour as temporary was placed before the Ho'n'ble Supreme Court in Writ Petitions No. 147, 320-69, 454, 4335-4434/83 etc. Inder Pal Yadav & ors. vs. Union of India & Ors. The Supreme Court has approved the scheme subject to modification indicated in the judgment dated 18.04.85, a copy of which is enclosed. "
From the perusal of the order aforementioned, it is clear that the Ministry of Railways after framing the Scheme placed it before the Hon‟ble Supreme Court for approval. The Hon‟ble Supreme Court approved the relevant Scheme while modifying the cut-off date from 01.01.1984 to 01.01.1981. The relevant observations of the Hon‟ble Supreme Court made in the case of Inder Pal Yadav (supra) are extracted hereunder which would make the things very clear about the cut off date.
"Railway Ministry framed a Scheme and circulated the same amongst others to all the General Managers of Indian Railways including production units as per its circular No. E(NG)II/84/CL/41 dated June 1, 1984. In the Scheme it was stated that all the General Managers were directed to implement the decision of the Railway Ministry by the target dates It was further stated that a detailed letter regarding group 5 1(ii) would follow. Such a letter was issued on June 25, 7- O.A. No. 060/1351/2019 1984. Thereafter, these matters were set out for examining the fairness and justness of the Scheme and whether the Court would be in a position to dispose of these petitions in view of the Scheme. That is how these matters came up before us.
The relevant portions of the Scheme read as under:
"5.1. As a result of such deliberations, the Ministry of Railways have now decided in principle that casual labour employed on project (also known as 'project casual labour') may be treated as temporary on completion of 360 days of continuous employment. The Ministry have decided further as under:
(a) These orders will cover:
(i) Casual labour on projects who are in service as on 1.1.84; and
(ii) Casual labour on projects who, though not In service on 1.1.84, had been in service on Railways earlier and had already completed the above prescribed period (360 days) of continuous employment or will complete the said prescribed period of continuous employment on re-engagement in future. (A detailed letter regarding this group follows).
(b) The decision should be implemented in phases according to the schedule given below:
Length of service Date from which Date by which (i.e. (i.e.continuous may be treated decision should employment). as temporary be implemented
(i) Those who have 1.1.1984 31.12.1984 completed five yearsof service as on 1.1.84
(ii) Those who have 1.1.1985 31.12.1985 completed three years but less than five years of service as on 1.1.1984
(iii) Those who have 1.1.1986 31.12.1986 ted 360 days but less than three years of service on 1.1.1984
(iv) Those who complete 1.1.1987 or 31.3.1987 360 days after the date on which 1.1.1984 360 days are completed which ever is later.
Xxxxxx By and large the scheme certainly is an improvement on the present situation though not wholly satisfactory. However, the railway being the biggest employer and having regard to the nature of its work, it would have to engage casual labour and therefore, as a preliminary step towards realisation of the ideal enshrined in Articles 41 and 42, we propose to put our stamp of approval on the scheme with one major variation which we proceed to herein set out. The Scheme envisages that it would be applicable to casual labour on projects who were in service as on January 1, 1984. The choice of this date does not commend to us, for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous court's order. To illustrate, in some matters, the court granted interim stay before the workmen could be retrenched while some other were not so fortunate. Those in respect of whom the court granted interim relief be stay/suspension of the order of retrenchment, they would be treated in service on 1.1.1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation of the Scheme. There is another area where discrimination is likely to rear its ugly head. These workmen come from the lowest grade of railway service. They can ill afford to 8- O.A. No. 060/1351/2019 rush to court. Their Federations have hardly been of any assistance. They had individually to collect money and rush to court which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to knock at the doors of the court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. It is a Hobson's choice. Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of this Court. Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify part 5.1 (a) (i) by modifying the date from 1.1.1984 to 1.1.1981. With this modification and consequent rescheduling in absorption from that date onward, the Scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by re-casting the stages consistent with the change in the date as herein directed."
11. In view of the modification in cut off date by the Hon‟ble Supreme Court itself in the relevant Scheme placed by the Ministry of Railways vide the order aforementioned, the contention of the applicant that the Railway Board has arbitrarily and illegally changed the cut off date from 01.01.1984 to 01.01.1981 does not hold ground and the same is, therefore, rejected. The Railway Board order R.B.E. No. 167/86 dated 11.09.1986 has been issued strictly adhering to the directions issued by the Hon‟ble Supreme Court in the case of Inder Pal Yadav (supra). Therefore, no direction from this Tribunal is warranted, once the Scheme has been approved by the Hon‟ble Supreme Court.
12. Admittedly, the applicant was engaged as a casual worker on 15.09.1984 and was not in service with the Railways as on cut-off date 01.01.1981. The contention of the respondents is that since the deceased employee was not in service as on 01.01.1981 the cut-off date, therefore, he was not considered for granting temporary status as per the relevant Scheme. Since the contention of the applicant regarding applicability of cut-off date has already been rejected, the action of the respondents in not considering the case of the deceased 9- O.A. No. 060/1351/2019 employee under the relevant Scheme, framed pursuant to judgment in Inder Pal Yadav‟s case, is justified and legal.
13. The claim of the applicant also suffers from delay and laches. The order issued by the Railway Board in the year 1986 has been challenged by the applicant in the year 2019. Further, the applicant got the service on compassionate grounds due to death of her husband in 1992. At that time also, the applicant has not raised any claim for family pension before the respondents. Thereafter a long delay of 27 years, the applicant filed representation in 2019 without any justification for delay which has been rightly rejected by the respondents.
14. Learned counsel argued that the as per the Railway Services (Pension) Rules, 1964, if the employee completes one year service, the family pension would be admissible to his family in case of his death. For better appreciation, the relevant rule relied upon by the applicant is reproduced hereunder:-
"(2) Eligibility:- Family pension, according to these rules, will be admissible to the family of the employee subject to the following conditions:-
(a) In case the employee dies while in service he must have completed at least one year's service. Period of exatra ordinary leave should be counted for the purpose of reckoning one year It has been decided by the President that the condition of one year's service will not apply henceforth provided the Railway servant had been medically examined and found fit for appointment under the Government."
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15. From the perusal of the relevant rule, it is seen that the condition of one year of service for family pension eligibility would apply provided the railway servant has been medically examined and found fit for appointment under the Government. The contention of the applicant is that her deceased husband was medically examined for the purpose of screening on 13.12.1989. However, the contention has been denied by the respondents and it has been averred that the applicant‟s husband was not screened. The applicant has alleged tampering with the record by the respondents while editing the entry and recording that deceased employee was not screened. The inadvertent error made in the entry has been initialled by the concerned official. Be that as it may, the pension rules provide that the family pension is admissible after completion of one year‟s service provided the applicant is declared fit in the medical examination. The process of screening undergone by the employee would not fulfil the eligibility for family pension and it has nowhere been recorded in the service record that the result of the screening was declared and he was found fit. Thus, the contention of the applicant that since her husband (deceased) was screened and is therefore she is entitled for family pension after his death is not in consonance with the relevant rules. The contention of the respondents that the deceased employee was never absorbed as regular employee till death and therefore, the family pension is not admissible has substance. The other benefits like DCRG and accident compensation have already been granted. She has also been granted compassionate appointment.
16. Learned counsel for the applicant has relied upon the view rendered on the issue by the Hon‟ble High Court of Gujarat in the case 11- O.A. No. 060/1351/2019 of Rukhiben Rupabhai Vs. Union of India and Others, 1988 (1) SCC
306. However, the view taken by the Hon‟ble Gujarat High Court has already been considered and thrashed by the Hon‟ble Supreme Court in the case of General Manager, North West Railway & Ors Vs. Chandna Devi, 2008 (2) SCC 108 while observing as under:-
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 Mannual 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 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.
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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, Souther 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.
17. In view of the above, the applicant has failed to make out her case for deemed regularization of her deceased husband and therefore, she is not legally entitled to consequent admissibility for family pension. Accordingly, the Original Application is dismissed being devoid of merit. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟