IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15623 of 2005 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE
MR.BHASKAR BHATTACHARYA
AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== KODARBHAI RATNABHAI, EX GANGMAN Versus UNION OF INDIA & ORS.
========================================== =============== Appearance :
MR PH PATHAK for Petitioner.
MS HINA DESAI for Respondents.
========================================== =============== Date : 06/09/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. By this Special Civil Application under Article 226 of the Constitution of India, the petitioner has challenged the order dated 10th December 2004 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad, in Original Application No. 134 of 2001 filed by the petitioner, in which he challenged the order dated 19th June 1998 passed by the General Manager, Western Railway, rejecting the claim for grant of invalid-pension on the ground that a Casual Labour is not a Railway Servant, and as such, the petitioner is not entitled to the relief claimed for.
2. The facts giving rise to the filing of this writ-application may be summed up thus:
2.1 The petitioner was engaged as a 'casual labour' in the Railways with effect from 22nd October 1974. The petitioner worked continuously till 27th January 1987. The petitioner was later on sent for medical examination before making him 'temporary' when he was declared unfit because of physical disability and this fact was intimated to the petitioner by letter dated 27th January 1987. Immediately after he was declared unfit, his service was terminated by issue of a notice under section 25F of the Industrial Disputes Act and the petitioner was told that he would be paid retrenchment compensation and notice pay. However, according to the petitioner, he did not receive any notice pay and retrenchment compensation from the respondents. The petitioner, therefore, approached the Central Administrative Tribunal by filing Original Application No. 887 of 1995.
2.2 The Tribunal, on consideration of the materials available on record, passed an order on 19th July 1996 condoning the delay in filing the application and directing the petitioner to file an application before the General Manager, Western Railway, who was directed to consider the application on merits, and take decision keeping in view the circumstances of the applicant and in accordance with the rules within four months from the date of the receipt of the application and intimate the decision taken thereafter to the petitioner.
2.3 Pursuant to the said order dated 19th July 1996 passed by the Tribunal, the General Manager, Western Railway, passed a speaking order on 19th June 1998 holding that the demand of the petitioner for alternative employment, invalid-pension and compassionate appointment to his dependent son could not be acceded to.
2.4 The petitioner challenged the said decision dated 19th June 1998 before the Central Administrative Tribunal, Ahmedabad Bench by filing Original Application No. 134 of 2001 and prayed for the following relief:-
“A. This Hon'ble Tribunal be pleased to declare the impugned decision of the General Manager rejecting the request of the applicant for invalid pension and compassionate employment to his son of the applicant, as illegal, unjust, arbitrary, discriminatory and violative of Articles 14, 16 & 21 of the Constitution of India and be pleased to quash and set aside the same and direct the respondents to grant invalid pension to the applicant and compassionate employment to the son of the applicant.
B. Be pleased to declare that the applicant was temporary railway servant and not merely a 'casual labour' and therefore, the decision of respondent to deny invalid pension is unjust and arbitrary hence quash and set aside the same.
C. Be pleased to declare that the employee with temporary status having long service cannot be excluded from the definition of railway servant for grant of invalid pension or other pension and declare that the applicant is entitled to get invalid pension and all retirement benefits including gratuity, compassionate employment to the son of the applicant.
D. Be pleased to declare the provision of definition of clause (23) Railway Servant, whereby it exclude the casual labourer irrespective of length of service or granted temporary status, for getting the benefits of pension under Railway Services Pension Rules, 1993, as invalid and ultra vires to Articles 14 & 16 of the Constitution of India and set aside the decision of General Manager to deny compassionate employment to the son of the applicant and direct the respondents to grant invalid pension to the applicant with all arrears with 18% interest.
E. Pending admission and final disposal of this application, be pleased to direct the respondents to start paying the applicant invalid pension to enable the applicant to survive.
F. Pending admission and final disposal of this application, be pleased to direct the respondents to consider the case of the son of the applicant for compassionate employment.
2.5 The Tribunal, by its order dated 10th December 2004 dismissed the Original Application by holding that the petitioner having failed to show that he was a Railway Servant, was not entitled to get the benefit of invalid-pension, as according to the Tribunal, the definition excludes “casual labour”.
2.6 Being dissatisfied, the petitioner has come up with the present writ-application.
3. Mr. Pathak, the learned advocate appearing on behalf of the petitioner, by placing strong reliance upon the decision of the Supreme Court in the case of L. ROBERT D'SOUZA vs. THE EXECUTIVE ENGINEER, SOUTHERN RAILWAY & ANR. reported in
AIR 1982 SC 854 (1) strenuously contended before us that the Tribunal failed to consider the effect of the above decision which categorically held that on completion of continuous and uninterrupted service for over six months, a casual labour acquired the status of 'temporary railway servant', and, therefore, even if the petitioner was found to be unfit for regularization, he was entitled to the benefit of invalid-pension.
4. Ms. Hina Desai, the learned advocate appearing on behalf of the respondents, has, on the other hand, opposed the aforesaid contention of Mr. Pathak and has contended that the Tribunal, by a well-reasoned order having turned down the prayer of the petitioner, this Court, sitting in writ-jurisdiction, should not interfere with the order passed by the Tribunal. Ms. Desai submits that it has been established from the materials on record that the petitioner never attained the status of a 'temporary labour' and thus, the Tribunal was justified in refusing the prayer for invalid-pension.
5. In order to appreciate the question involved in this writ- application, it will be profitable to refer to the definition of Casual Labour provided in Rule 2001(i) in Chapter XX of the Indian Railway Establishment Manual, which is quoted below:
“2001.[i] Definition of Casual labour – Casual labour refers to labour whose employment is intermittent, Sporadic or extends over short period or continued from one work to another. Labour of this kind is normally recruited from the nearest available source. They are not ordinarily liable to transfer. The conditions applicable to permanent and temporary staff do not apply to casual labour.
Casual labour on Railway should ordinarily be employed only in the following types of cases.
[a] Casual Labour [Open Line].- Casual Labour are primarily engaged to supplement the regular staff in work of seasonal or sporadic nature, which arises in the day to day working of the Railway system. This includes Labour required for unloading and loading of materials, special repair and maintenance of track and other structures, supplying drinking water to passengers during summer months, [recoupment of man-days lost on account of absenteeism] patrolling of tracks, etc. Casual Labour so engaged in the operation and maintenance of railway system is referred to as open line Casual Labour, as distinct from project Casual Labour, described in para [b] infra.
[b] Casual Labour [Project]- Casual Labour are also engaged on Railways for execution of Railway projects, such as new lines ,doubling, conversion, contraction of building, track renewals, Route Relay interlocking Railway Electrification, setting up of new units etc. Casual Labour so engaged are referred to as “Project Casual Labour”, Such of those casual Labour engaged on open line [revenue] works, who continue to do the same work for which they were engaged or other work of the same type for more than 120 days without a break will be treated as temporary [i.e. given “temporary status”] on completion of 120 days continuous employment.
Casual Labour on project who have put in 180 days of continuous employment on works of the same type are entitled for 1/30th of the minimum of the appropriate scale of pay plus Dearness allowance.
Before giving regular scale of pay or 1/30th of the minimum of the scale plus Dearness Allowance on completion of 120 days or 180 days continuous employment as the case may be, a preliminary verification in regard to age and completion of requisite number of days of continuous service should be done by the assistant officer and the person should also be got medically examined and only if found fit he should be granted regular scales of pay.
[ii] Grant of temporary status to project casual Labour is regulated by instructions separately issued by the Railway Board. As far as possible Casual Labours required for New projects must be taken from amongst those casual labours, who have worked on the open line/projects in the past in preference to outsiders.
[iii] Seasonal Labour sanctioned for specific works of less than 120 days duration. If such Labour is shifted from one work to another of the same type and the total continuous period of such work at any time is more than 120 days duration, they should be treated as temporary [i.e. granted “temporary status”] after the expiry of 120 days continuous employment.”
5.1 At this stage, it will also be profitable to refer to Chapter VIII dealing with the pension Scheme, which is quoted below:
“[1] Applicability of Pension Scheme:-- The pension scheme was introduced on the Railways with effect from 1-4- 1957 and the Pension Rules under this scheme are applicable to the following staff :-
[a] The staff who are appointed on or after 16-11-1957.
[b] The staff appointed prior to 16-11-57 have been given an option, and those who have exercised their option within the target date in favour of the Pension, will also be governed under the Pension rules.
[c] The staff who were governed under pension rules prior to 16-11-57 will continue to be governed under the old pension rules unless they have also chosen to come under the new liberalised pension rules.
[d] The staff who are already governed under these rules viz. Members of Indian Rlys. Engineers of the Provincial Engineering Service, State Railways, who joined their appointments prior to 17-9-25. Superintendents and non- gazetted staff other than inferior servants appointed prior to 1- 11-24 in Railway Board's office etc. Officers who after completion of the apprenticeship have been appointed as probationer on or after 16-1-57 would be governed by pension rules. [R.B's. No. E(O) II/75/PFI/1 of 18-9-76] (N.R., S.N. 6631] [2] Kinds of pension :-- Pension is divided into two categories i.e. Ordinary Pension and Extra-ordinary Pension.
[I] Ordinary Pension:-- It is further divided into four classes, viz.:--
[a] Compensation Pension: -- This pension is granted to those employees who are discharged from service on account of abolition of the posts held by them and failure of the administration to provide other suitable jobs of more or less equal status and emoluments.
[b] Invalid Pension: -- This is granted to those employees who are found unfit for further service on account of some physical or mental infirmity. If however the unfitness is directly due to the irregular or intemperate habits, no pension will be granted.
[c] Superannuation Pension :-- This is granted to the employees when they attain the age of superannuation i.e. the age of retirement.
[d] Retiring pension:-- This is granted to the employees who retire on completion of 30 years of satisfactory service either at their own option or on the orders of administration. Three month's notice for such retirement is necessary.
[II] Extra ordinary Pension:-- This pension is granted to an employee who is injured and to his family when he is killed or succumbs to the injuries sustained while in the proper execution of his duty.”
5.2 Chapter VI of the Manual of Railway Pension Rules, 1950 prescribes the condition of grant of invalid gratuity / pension. Relevant Rules 608 and 616 are quoted below:
“608. To whom granted.--[i] Where the appropriate authority has reason to believe that a Railway servant is suffering from
[a] a contagious disease, or
[b] a physical or mental disability which in its opinion interferes with the efficient discharge of his duties it may direct him to undergo medical examination with a view to retire him from service on invalid gratuity/pension.
A Railway servant also may, if he feels that he is not in a fit state of health to discharge his duties, apply to the appropriate authority for retirement on invalid gratuity/pension.
[ii] An invalid gratuity/pension where admissible shall be granted to a Railway servant who having appeared under the directions of the appropriate authority or on his own application, before a duly constituted medical authority, is certified by that medical authority, to be permanently incapacitated for further service by bodily or mental infirmity.
[iii] A Railway servant who is physically or mentally incapacitated by the medical authority for the post which he occupies but is not incapacitated for performing other duties and who does not accept an alternative employment offered to him in terms of Rule 152-R.I, may be granted pensionary benefits otherwise due on invalidation, if the sanctioning authority is satisfied that the alternative employment offered to him was not suitable [from the point of view of standard of living, education, temperament, or the emoluments offered, etc., etc.] and the Railway servant was justified in not accepting the same.”
“616. Restrictions.-- A Railway servant who is discharged from service on grounds other than those specified in Para 608 shall have no claim to invalid gratuity/pension even though he produces medical evidence of incapacity for service.”
6. After hearing the learned advocates for the parties and after going through the materials on record, we find that Mr. Pathak is quite justified in submitting that his client acquired the status of 'temporary railway servant' on completion of six months service. It appears from the records that the petitioner was initially appointed on 22nd December 1974 and thereafter was transferred on 20th May 1982. Thereafter, he was transferred on 1st June 1982 and subsequently, transferred twice, first on 20th March 1983 and thereafter, on 4th July 1985. However, he was declared medically invalid by Certificate No. 13426 dated 13th November 1986. Subsequently, the petitioner was again sent for medical examination in relaxed or lowest C-2 class, but was declared unfit by Certificate No. 143419 dated 13th January 1987. As the petitioner was declared unfit for the lowest class, he was terminated from service.
7. We have already pointed out above that the petitioner challenged the said order before the Tribunal in the first round of litigation by filing OA No. 887 of 1995, when the Tribunal, by order dated 19th July 1996, disposed of the Original Application, with a direction upon the General Manager, Western Railway, to consider the matter afresh on merits in accordance with the rules. As the General Manager turned down the application of the petitioner by his order dated 19th June 1998, the petitioner challenged the said order before the Tribunal in the second round of litigation by filing O.A. No. 134 of 2001 and, as stated above, the Tribunal dismissed the application on 10th December 2004.
8. As pointed out by the Supreme Court in the case of L. ROBERT D'SOUZA vs. THE EXECUTIVE ENGINEER, SOUTHERN RAILWAY & ANR. [Supra] relied upon by Mr. Pathak, it is apparent that the petitioner having rendered continuous, uninterrupted service for long 12 years has definitely acquired the status of 'temporary railway servant' after expiry of six months of continuous employment – long before the termination of his service. The following observations of the Supreme Court in the abovementioned case are relevant and are quoted below:
“What has been urged on behalf of the respondent is that the appellant was employed in construction work and, therefore, labour on projects irrespective of duration would belong to the category of casual labour. That, however, does not mean that every construction work by itself becomes a work-charged project. On the contrary sub-clause (1) of clause (b) of Rule 2501 would dearly show that such of those persons belonging to the category of casual labour who continued to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment. Similarly, seasonal labour sanctioned for specific works for less than six months' duration would belong to the category of casual. labour. However, sub-clause (iii) of clause (b) of R. 2501 provides that if such seasonal labour is shifted from one work to another of the same type, as for example, 'relaying' and the total continuous period of such work at any one time is more than six months' duration, they should be treated as temporary after the expiry of six months of continuous employment. The test provided is that for the purpose of determining the eligibility of casual labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers. It is thus abundantly clear that if a person belonging to the category of casual labour employed in construction work other than work-charged projects renders six months' continuous service without a break, by the operation of statutory rule the person would be treated as temporary railway servant after the expiry of six months of continuous employment. It is equally true of even seasonal labour. Once the person acquired the status of temporary railway servant by operation of law, the conditions of his service would be governed as set out in Chapter XXIII.”
xxx xxx xxx xxx xxx “14. The question, therefore, is whether the appellant who was recruited as casual labour continued to be the same or he had acquired the status of temporary railway servant at the time of termination of his service. In the affidavit filed in the High Court the respondents contended that the appellant was employed in construction, work on work- charged project. The High Court did not examine this contention on merits and, therefore, it has become obligatory upon us to probe it.
15. The appellant has stated that he joined as a Gangman on July 1, 1948 at Mangalapuram and he was transferred in 1953 to Pindur in Mysore State. He confessed that he does not have any record to show this employment but urged that if the pay roll of the relevant period would be produced by the Railway administration, the fact alleged would be completely borne out. We would bypass this controversial period, without recording any finding on it one way or the other. The appellant further contends that on November 15, 1954, on transfer be joined in the office of Inspector of Works at Mangalore and since then he has been in continuous employment in the construction branch of the Southern Railway till the date of his illegal termination of service on Oct. 8, 1974. These averments are incontrovertible and have not rightly been controverted before us, in view of unimpeachable evidence produced by the appellant. The Executive Engineer, Ernakulam, where the appellant at the relevant time, i.e. September 5, 1966, was working, addressed a letter to various Executive Engineers inquiring, from them whether the surplus staff on his establishment could be absorbed by any of them. The material portion of the letter reads as under :
Ext. P-3 Executive Engineer's Office, Ernakulam Dated 5-9-1966 Subject: - Surplus staff (Casual labour staff) absorption of "Since the major, portion of the work in this construction unit is over the list of the C. L. Staff who are likely to be rendered surplus by 30-9-1966 and 31-12-1966 due to expiry of sanction to the post held by them. is enclosed.
Please advice whether you can absorb any of these personnel in your construction division so that they may be relieved in time it they are willing".
Enclosures :
1) List.
List of C. L. Staff working in Xen's Office/Ers.
Sr. No. NamePresently working as Date of appointment x x x 10. Robert D'Souza Peon/Lascar. 15-11-54 x x x This evidence furnished from the record of the respondent and not controverted by any affidavit to the contrary would establish that the appellant was in continuous service from November 15, 1954. Recall here, the fact that his service was terminated by the impugned order contained in the letter Annexure I dated October 8, 1974. Therefore, apart from the period in controversy from 1948 to 1964 it is unquestionably established that the appellant was in continuous uninterrupted service from November 1954 to October 1974, a period of 20 years and he was working as Peon/Lascar. Undoubtedly he has been referred to as belonging to casual labour staff but would it be fair to hold that after 20 years of continuous service, he would still continue to be a casual labour and therefore, his service could be terminable at will and he would not be entitled to any of the benefits which a temporary or a permanent railway employee would enjoy ?
16. There is, however, one more aspect to which we would refer before we proceed to pronounce upon the status of the appellant. The definition of casual labour extracted by as above clearly indicates that person belonging to casual labour is not liable to transfer. The appellant has stated that he was transferred to Madras in 1957, to Tuni in Andhra Pradesh in 1958, to Rajahmundry in 1960, to Samalkhotan in 1961, to Virudhnagar In 1962 and to Manamadurai in 1965 and then to Ernakulam in August 1965. It appears that he was again transferred from Ernakulam which was seriously objected and he took up the matter with the higher authorities when he was re- transferred to Ernakulam, on March 19, 1971. This appears from the letter of the Under Secretary in the Ministry of Labour addressed to the appellant in which it is stated that the Ministry of Railways was advised that the appellant be transferred back to Ernakulam. which advice has been carried out and the intervening period for which he did not report for duty, i. e. from March 6, 1970 to February 19. 1971, he would be paid the wages as if he was on duty. In the face of these incontrovertible facts could it at all be said that the appellant though transferred ad nauseum still continued to belong to the category of casual labour?”
(Emphasis supplied)
9. Applying the aforesaid principles to the facts of the present case we find that the petitioner has not only been transferred from place to place which a casual labour cannot be subjected to but he has also worked uninterruptedly for more than twelve years and thus, has automatically acquired the status of temporary railway servant.
10. Once we hold that the petitioner automatically acquired the status of 'temporary railway servant' by virtue of his continuous service as casual labour and has also been repeatedly transferred, we are of the view that the petitioner is entitled to get invalid-pension as the petitioner was found to be physically unfit for discharge of his duties. The only restriction of granting invalid-pension as provided under Rule 616 of Chapter VI is that he must not be discharged from services on the grounds other than those provided in rule 608. In the case before us, the employer sought to terminate his services by invoking the ground of physical disability, a ground mentioned in rule 608 quoted above.
11. On consideration of the entire materials on record, we, therefore, find that in this case, on completion of uninterrupted service of six months, the petitioner attained the status of 'temporary railway servant' and thereafter, worked for about 12 years when ultimately he was not regularized as he was found to be medically unfit.
12. In such circumstances, in our opinion, the petitioner is entitled to get the benefit of invalid-pension. The Tribunal below, as it appears from the records, totally overlooked the aforesaid vital aspect and rejected the Application of the petitioner.
13. We, accordingly, allow this writ-application and set aside the order dated 10th December 2004 of the Tribunal in O.A. No. 134 of 2001. The respondents are directed to calculate the amount of invalid-pension in accordance with the Rules after taking into consideration the period of service rendered by the petitioner on attaining the status of 'temporary railway servant' after the expiry of six months of continuous employment as casual labour. Such decision be taken and the petitioner be given the benefit within two months from today, with interest at the rate of 12% per annum from the date of his entitlement till actual payment.
14. This writ-petition is allowed in terms of the aforesaid order. Rule is made absolute accordingly, with no order as to costs.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]