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Judgment
Dr. Sanjiv Kumar, Member (A)
This Original Application is filed under section 19 of the Central Administrative Tribunal Act, 1985 seeking relief to quash the impugned order dated 12.10.2009 passed by respondent no. 3 and order dated 10.08.2010 passed by respondent no. 4 and to direct the respondents to grant family pension and other dues to the applicant, as admissible to her husband Late Ramesh Chandra.
The facts of the case of the applicant is that the deceased employee Shri Ramesh Chandra was appointed as casual chowkidar in the Postal Department in the year 1974 and on 01.01.1989 he was conferred temporary status under Grant of Temporary Status and Regularisation Scheme formulated by the Department of Post in consultation with the M/O Law, Finance and Personnel. The scheme was formulated on 12.04.1991 which provides that the temporary status would be conferred on casual labour in employment as on 29.11.2089. It is also stated that para 8 of the scheme further provides that if an employee holding temporary status successfully completes three years of service on 28.11.1992, he would be treated at par with temporary Group ‘D’ Employees for the purpose of contribution to GPF, Festival Advance etc. It is further contended that the deceased employee could not be regularized and he died on 20.10.2005 in harness. Learned counsel for the applicant contended that after the death of her husband, the respondents did not pay the retirement benefit to the applicant, so she preferred a representation dated 11.08.2009 before the respondent no. 4 for grant of family pension and vide order dated 12.10.2009, she was informed by the respondent no. 3 that family pension is not admissible to her in view of the fact that her husband was only awarded temporary status in the department which does not come within the purview of departmental employee as provided in the relevant rules. Thereafter, the applicant sent a legal notice through her Advocate on 30.04.2010 and in response thereto, the respondent no. 4 vide order dated 10.08.2010 informed the applicant that the family pension is not admissible to her in the light of the decision taken by the Pension Cell on the basis of the order dated 12.10.2009.
Being aggrieved by the orders of the respondents, the applicant has filed this OA on the ground that the action of the respondents in not awarding family pension is illegal and bad in the eyes of law. Learned counsel submitted that the husband of the applicant continuously worked as Chowkidar w.e.f. 01.01.1989, the date on which he was granted temporary status, hence he became employed in running scale and continued to work till his death i.e. 02.10.2005. Thus, The deceased employee had rendered 16 years in the department of post as temporary status. Learned counsel for the applicant also contended that the stand of the Department is not as per the law laid down by the Hon’ble Apex Court as well as the several decisions of this Tribunal. Hence, the present Original Application should be allowed.
The respondents have filed their counter, wherein they reiterated that the deceased employee Late Ramesh Chandra Sharma, had been working C.P. Chaukidar since 23.05.1978 and subsequently he was granted temporary status w.e.f. 29.11.1989 but he could not be regularized in Group ‘D’ on account of non-availability of Group ‘D’ vacancies. The respondents further stated that request of the applicant for family pension was considered by the competent authority and she was informed accordingly vide letter dated 30.09.2009 that pension facility is not admissible to the temporary status employees as per directions received from the Postal Directorate vide letter dated 23.08.1997.
The applicant has not filed rejoinder. However, learned counsel for the applicant submitted that the pension is deferred wages and that the employer cannot deny to the workers’ pension who have worked.
This case came up for final hearing on 01.11.2023. Shri Shyamji Das Gupta, learned counsel for the applicant and Shri Rajnikant Rai, learned counsel for the respondents were present and heard.
I have considered the rival submissions advanced by the learned counsels for the parties and also gone through the records carefully.
From the facts of the case, it is evident that the deceased employee worked in Postal Department since 1974 and on 29.11.1989, he was conferred temporary status and in three years he was entitled for regularization but he could not be regularized and he died on 20.10.2005. Since the deceased employee could not be regularized, so the contention of the Department is that as he was not regularized hence he is not entitled for any pensionary benefit including Pension, gratuity and leave encashment. The respondents rely on the judgment passed by the Hon’ble High Court in WP/ 509/2008 on 29.03.2017 which reads as under:-
“4. Learned counsel for petitioner argued before us that in view of judgment in Chandi Lal Vs. Union of India and others passed in Original Application no. 917 of 2004 decided by Tribunal on 29.09.2005, petitioner ought to be given pension since in this case pension was paid. A perusal of judgment clearly shows that Chandi Lal was actually regularized. Statutory provisions provide, if a person is regularized then his temporary service to certain extent will also count towards his qualifying service and that was applied in his case. The aforesaid judgment does not apply in the case in hand, since petitioner here was never regularized.
In absence of any provision permitting pension to temporary employee of Central Government, we do not find that petitioner’s claim for pension can be granted. Tribunal, therefore, has rightly dismissed original application.”
On the other hand, learned counsel for the applicant relied on judgment dated 23.08.2017 passed by Central Administrative Tribunal, Allahabad Bench in OA No. 1467/2015 – Smt. Bati Bai Vs. UOI & Ors and contended that the same covers the case of the applicant as the facts are similar as the applicant’s husband falls within the category of deemed to be regularized and hence the stand of the respondents that deceased employee was never regularized and denial of pension only because he refused regularization is untenable. While allowing the OA No. 1467/2015, this Tribunal has followed the order dated 28.07.2009 passed by CAT, Allahabad Bench in OA No. 1226/2005 – Shyam Lal Shukla Vs. UOI & Ors. The operative portion of the said order reads as under:-
“8. In the case of Shyam Lal Shukla (Supra) the applicant was initially appointed as full time CP Chowkidar and was granted temporary status w.e.f. 29.11.1989. No formal order of regularization was ever issued. In this case, the applicant was deemed to be regularized, treated as ‘regular employee’ of the department and declared entitled to all post retiral benefits as per relevant statutory rules in force. The Writ Petition No. 60272/2009 filed against the said order of Tribunal was dismissed by the Hon’ble High Court vide order dated 23.12.2011 and Hon’ble Supreme Court also upheld the order of the Tribunal and High Court vide order dated 06.08.2012 passed in SLP (Civil)……/2012 (CC 12664/2012).
The facts and circumstances of above noted case are almost similar to the case in hand. In the instant case, the husband of the applicant was appointed as CP Chowkidar on 29.11.1980 and he was extended temporary status w.e.f. 29.11.1989 and thereafter he was accorded the benefit of Group ‘D’ employees. The cases of Chandi Lal and Shyam Lal Shukla went up to Hon’ble Supreme Court and it has been settled that such employees shall be deemed to have been regularized and consequently required to be treated as regular employees of the respondents’ department and they are entitled to all pensionary benefits.
Accordingly, the OA stands allowed. The respondents are directed to ensure payment of family pension and other post retiral benefits to the applicant alongwith interest @ 7% per annum from the date it becomes due till the date of actual payment as expeditiously as possible within a period of three months from the date of receipt of copy of this order. No order as to costs.”
While considering the facts of the present case as well as the above order of this Tribunal, it appears that facts of the instant OA are same as that of the coordinate Bench decision in dated 23.08.2017 passed in OA No. 1467/2015 wherein the husband of applicant also was only deemed to be regularized and consequently treated as regular employee of respondents’ department and hence OA was allowed and the applicant of that OA was granted pensionary benefit with interest at 7% per annum from the date it became due till the date of actual payment. Considering the facts and ratio of the judgment in OA No. 1467/2015 and therein the quoted judgments of High Court Orders in WP No. 60272 of 2009 in the case of Union of India and others Vs. Shyam Lal Shukla wherein it was finally settled the question that Postal Employees who were granted temporary status in pursuance of D.G. Post Letter dated 12.04.1991 entitled for pensionary benefits as being deemed regularized, and the Hon’ble High Court observed following:-
“In our view the said Rule clearly spells out its essential purpose, to give pensionary benefit to certain class of employees as ‘regular employee’, notwithstanding the fact that no formal order of regularization was passed.”
The above order of the Hon’ble High Court was challenged by the Union of India before the Hon’ble Supreme Court vide SLP(Civil)------/2012 (CC 12664/2012) which was dismissed by the Hon’ble Supreme Court vide judgment dated 06.08.2012 and the order of Hon’ble High Court was upheld.
As the service details of the deceased employee Ramesh Chandra Sharma is not disputed, the deceased employee may be considered to be regularized from the date of his entitlement for regularization i.e. 28.11.1992 and also deemed to be treated as regular employee of respondents department from that date. Taking into consideration the above arguments and entire documents, the present OA is liable to be allowed,
Accordingly the OA is allowed and the impugned orders dated 12.10.2009 and 10.08.2010 are quashed. The respondents are directed to ensure payment of family pension and other dues accrued to the applicant on account of death of her husband alongwith the interest of 6% from the date it became due till the date of actual payment, as expeditiously as possible preferably within a period of four months from the date of receipt of the certified copy of this order.
All associated Misc. Applications stand disposed off.
No order as to costs.