Jhunia Bai vs State of C.G. and Others

S.K. Agnihotri, J.

Since W.P. (S) Nos.2884.4170,4172,4998 and 5000 of 2009 involve the same question of law as to whether the petitioners are entitled to pension from the respective dates of their retirement in accordance with the provisions of the M.P./C.G. (Work Charged and Contingency Paid Employees) Pension Rules, 1979 (for short "the Pension Rules, 1979"). The facts of these writ petitions are also common and, as such, they are being disposed of by this common order.

The facts, in nutshell, as projected by the petitioners, are that the petitioners have been appointed as Gangman and Mate, on daily wages basis in the year 1980,1976,1975,1977 and 1978 respectively in the respondent department. Thereafter, by orders dated 19-8-2008,22-8-2008 and 22-8-2008, 22.8.2008 and 22.8.2008 respectively, the services of the petitioners were absorbed. After attaining the age of superannuation i.e. 62 years the petitioners were made to retire from their services on 28-2-2009,31-12-2008, 28-2-2009,30.4.2009 and 30-11-2008, respectively. Thereafter, the pension orders have not been released in their favour on the ground that they have not rendered their services for a minimum period of 10 years as work charged employees. Thus, these writ petitions.

Shri Mazumdar, learned counsel appearing for the petitioners, would submit that the petitioners retired from their respective services only after being permanently absorbed under the work charged establishment. The impugned action on the part of the respondent authorities is contrary to the Pension Rules, 1979 and against the law laid down by the Supreme Court as well as this Court in a catena of decisions. The petitioners rendered their services in the respondent department for more than 25 years. The petitioners worked in the respondent department on work charged basis without any interruption till they were absorbed in service.

On the other hand. Shri Bhatia, learned Dy. Govt. Advocate appearing for the State, would submit that the petitioners were appointed in the respondent department on daily wages basis and they were not considered as the employees under the Rules framed for work charged contingent employees, therefore, the petitioners are not entitled to pension. The services of the petitioners were regularized in the 2008 and on the date of their superannuation, the petitioners have not completed the requisite period of 10 years service forgetting pension under the provisions of the Pension Rules, 1979.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

It is evident that the petitioners were appointed on work charged establishment in the year 1980,1976,1975,1977 and 1978, respectively. Thereafter, by orders dated 19-8-2008,22-8-2008,22-8-2008,22-8-2008 and 22-8-2008, respectively, the services of the petitioners were absorbed against regular posts.

The identical issue came into consideration before this Court in M. A. Hakim v. State of Madhya Pradesh (Now C.G.) and others {W.P. No.4136 of 2004}. This Court observed that in view of the provisions of Rule 6 of the Pension Rules, 1979 the petitioner whether a permanent employee or temporary employee, if they continued against any regular pensionable post w.e.f. 1-1-1959 in case of permanent employee and w.e.f. 1-1-1974 in case of temporary employee, were entitled to pension.

Against the order dated 28-8-2006 passed by this Court in M.A. Hakim (supra) the State preferred a Special Leave Petition, being SLP (C) No. 19728/ 2006 before the Supreme Court, which was dismissed on 8-12-2006. It was informed, at the bar, that even the review petition filed against the order of dismissal, was also dismissed, by the Supreme Court.

In Govind and Others Vs. State of C.G. and Others, , wherein the question with regard to status of work charged employees was under consideration, this Court observed as under;

Rule 2 (b) & (h) of the Rules 1976 and Rule 2 (a) & (b) of the Rules, 1979 define ''contingency paid employee'' and work charged employee similarly, as under:- Rule 2.(b) and 2.(h) of the Rules, 1976:-

2.(b) ''contingency-paid Employee'' means a person employed for full time in an office or establishment and, who is paid on monthly basis and whose pay is charged to "office Contingencies", excluding the employees who are employed for certain periods only in the year" (h) ''Workcharged Employee'' means a person employed upon the actual execution, as distinct from general supervision of a specified work or upon subordinate supervision of departmental labour, store, running and repairs of electrical equipment and machinery in connection with such work, excluding the daily-paid labour and muster roll employed on the work.

Rule 2.(a) and 2.(b) of the Rules, 1979:-

Definitions. - In these rules, unless the context otherwise requires,- (a) "Contingency paid employee" means a person employed for full time in an office or establishment and who is paid on monthly basis and whose pay is charged to office contingencies excluding the employees who are employed for certain period only in a year;

(b) "Work-charged employee" means a person employed upon the actual execution, as distinct from general supervision of a specified work or upon subordinate supervision of the departmental labour, store, running and repairs of electrical equipment and machinery in connection with such work, excluding the daily paid labour and muster-roll employee employed on the work.

Rule 2(c) of the Rules 1979 difines the word ''Permanent Employee'' which reads as under: -

2 (c) ''Permanent employee'' means a contingency paid employee or a work-charged employee who has completed fifteen years of service or more on or after the 1st January, 1974. {Provided that in respect of a contingency paid employee or a work charged employee who has attained the age of superannuation on or after the First April 1981, permanent employee means an employee who has completed 10 years of service on or after the 1st January, 1974}

The petitioners working as gangmen, are workchrged employees as the petitioners were employed upon the execution of work of the Public Works Department. The daily paid labours and muster roll employees on the work are excluded from the definition of the workcharged employees as prescribed in Rule 2 (h) of the Rules 1976. The permanent employees are contingency paid employees or workcharged employee who have completed 15 years of service or more on or after 1.1.1974. Casual labour gangs and permanect gangs are provided in public Works Department Manual (for short ''the P.W.D. Manual''). Para 4.003 of the said P.W.D. manual provides for registration and payment of daily casual labour regular labour gangs, as under:-

(A) Casual Labour Gangs.- When work is to be done by daily casual labour gangs, the subordinate incharge shall prepare a muster roll, which will show the names of the work-people, their attendance, the work done and the amount payable on this account. Monthly muster rolls if necessary, may be closed after seven days or as convenient.

(B) Permanent Gangs.-

(a) Attendance of permanent gangs shall be entered in an attendance register. Attendance will be recorded by Time Keeper daily in the morning. At headquarters, the attendance will be checked by Sub-Engineer at least twice a week outside headquarters. A cross mark (x) must be placed against each absent person so that no blank space is left.

(b) Acquaintance roll will be based on the number of days a labourer has actually worked plus authorized holidays and leaves.

(c) A register of work progress will be maintained in which following information will be recorded in five columns:-

(i) Instructions for work to be done. (ii) Compliance of instructions.

(iii) Quantities of measurable work/details of measurable work.

(iv) Details of materials consumed.

(v) Wages payable.

(d) The Sub-Engineer well review the register of work progress twice a week at headquarter and at least once a week in case of out station works. The Sub-Engineer/S.D.O. will ensure adequate progress.

(e) Any recruitment to regular gangs will be done only with the permission of S.E. Labourers more than 58 years of age shall not be employed/ continued in regular gangs.

Casual labour gangs are muster role employees wherein the payment is made on weekly or monthly basis, the permanent gangs attendance is maintained in the attendance register recorded by the time keeper, daily in the morning. Reading para 4.003 of the P.W.D. Manual with rule 2 (h) of the Rules, 1976, make it clear that the petitioners in the cases on hand are workcharged employees and as per Rule 2(c) of the Rules, 1979 if a workcharged employee has worked for more than 15 years of service or more on or after the 1st January, 1974, would become permanent employee. Admittedly, the petitioners have worked for more than 15 years, the same is not disputed by the respondents and as such they have become permanent employees of that State Government. Rule 6 of the Rules 1976 also provides for categorization of the ''workcharged'' and ''contingency paid'' employees, that the employees who have been in service for 15 years or more on 1st January, 1974 would be eligible for status of the ''permanent workcharged'' or ''contingency paid'' employees.

In Govind (supra) after examining all the provisions it was held that the ''workcharged'' and ''contingency paid'' employees who have been in service for 15 years or more on 1st January, 1974 would be eligible for status of the ''permanent workcharged'' or ''contingency paid'' employees.

The petitioners have not produced any document/rules/circulars wherein a contrary stand to the Pension Rules, 1979 has been taken. It is not the case of the State that there was any interruption before the petitioners were absorbed in service by orders dated 19-8-2008,22-8-2008,22-8-2008 22-8-2008 and 22-8-2008, receptively. Thus, the petitioners are entitled to get the benefit under the provisions of the Pension Rules, 1979.

Learned counsel appearing for the State would submit that in M.A. Hakim (supra), the petitioner therein worked as work charged contingency paid employee for more than 10 years and his joining was of the year 1956 and, as such, he completed years of service by 1-1-1974.

Rule 6 of the Pension Rules, 1979 reads as under:

Commencement of qualifying service - (1) Subject to the provisions of chapter III of the Madhya Pradesh Civil Services (Pension) Rules, 1976 of section IV of Madhya Pradesh New Pension Rules, 1951, as the case may be, for calculating qualifying service of a permanent employee who retired as such, the service rendered with effect from the 1st January, 1959 onwards shall be counted. (2) On absorption of a permanent employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1959 onwards shall be counted for Pension as if such service was rendered in a regular post.

(3) on absorption of temporary employee without interruption against any regular pesionable post, the service rendered with effect from 1st January, 1974 onwards if such service of less than six years shall be counted for pension as if such service was rendered in a regular post.

On perusal of Rule 6 of the Pension Rules, 1979 it appears that on absorption of a permanent employees, if he has continued without interruption against any regular pensionary post w.e.f. 1-1-1959, the pension shall be counted from the date of initial appointment. In case of absorption of temporary employee working against any regular pensionable post w.e.f 1-1-1974, such service is less than six years rendered in a regular post, shall be counted for pension, as if such service was rendered in a regular post.

It is clear that the employees who have been appointed in the year 1959 or 1974 alone are not entitled to get the benefit of Rule 6 of the Pension Rules, 1979, but other employees also who have worked against regular pensionable post and they were absorbed subsequently would also be entitled to get the benefit. There is no dispute that the petitioners working for about 25 years were absorbed subsequently.

The petitioners have further retired form their respective services on attaining the age of superannuation i.e. 62 years, which is available to only permanent work charged or contingency paid employees.

Looking from all angles since it is not the case of the respondents that after having been appointed on work charged establishment, as is evident from the order of absorption, the petitioners have worked uninterruptedly till they were absorbed against regular post. No material has been produced by both the parties as to whether the petitioners were appointed as contingency paid employees against the regular post. Therefore, no observation on this aspect can be made.

In view of foregoing, the respondent authorities are directed to examine the cases of the petitioners as to whether they have been appointed as contingency paid work-charged employee against any regular post. If this is the case, the petitioners shall be entitled to get the pension from the date of their retirement, in view of the provisions contained under Rule 6 of the pension Rules, 1979.

In the result, the writ petitions are allowed to the extent indicated above. Having regard to the fact that the petitioners retired from their services on 28-2-2009,31-12-2008,28-2-2009,30-4-2009 and 30-11-2008, respectively, needful, as directed above, shall be done within a period of three months from today.

No order as to cost.