Somvati vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-

8.1 That the Hon’ble Tribunal may graciously be pleased to direct the respondents to allow family pension to the applicant w.e.f. 3.12.1992, the date of death to her husband in service, as per Hon’ble CAT Judgment in the case of Malatikar (Smt.) duly affirmed by the Hon’ble Supreme Court, treating the deceased employee deemed regularized w.e.f. 3.12.1992 , the date of his death.

8.2 That the Hon’ble Tribunal may graciously be pleased to allow arrear of pension since 3.12.192 to the date it is allowed to the applicant with the interest @ 12% per annum from the date this amount is due to the date the same is actually paid to her.

8.3 That the Hon’ble Tribunal may graciously be pleased to allow heavy cost in favour of the applicant.

8.4 That the Hon’ble Tribunal may graciously be pleased to pass any other order or direction which may deem fit and proper in the facts and circumstances of the case so that the applicant may get justice.

The brief facts of the case are that the applicant is legally wedded widow of late Ganga Ram s/o Ishwari, who died on 3.12.1992, while working as temporary Gangman under the Permanent Way Inspector, Northern Railway/ Track Depot, Subedarganj, Allahabad. Deceased was appointed as Gangman on daily wage basis on 1.2.1978 in the Northern Railway, Allahabad Division. He continued to work as Gangman in the Track Depot, Subedarganj till his death on 3.12.1992. Temporary status was allowed to the applicant w.e.f. 4.11.1985. Unfortunately applicant died on 3.12.1992. Applicant worked in the department for about 15 years. By way of this OA, applicant has prayed to direct the respondents to allow family pension to the applicant w.e.f. 3.12.1992 from the date of death of her husband as per Hon’ble CAT Judgment in the case of Malatikar (Smt) and others Vs. Union of India and others passed in OA No. 1124 of 1989 decided on 8.10.1991 which was also affirmed by the Hon’ble Supreme Court.

Counter affidavit has also been filed by the learned counsel for the respondents stating that applicant was engaged as casual Gangman on daily rated basis on 1.2.1978. He was granted temporary status w.e.f. 1.11.1985 and while in service, he died before he got regularization. Respondents vide order dated 13.12.2012 rejected the claim of the applicant for family pension on the ground that widow of the casual labour with temporary status is not entitled for family pension, as per law laid down by Hon’ble Supreme Court in Civil Appeal NO. 4373-78 of 1997 Union of India Vs. Robia Bikaner and others.

Rejoinder affidavit has also been filed in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit.

I have heard Sri S.K. Vishwakarma, learned counsel for the applicant and Shri Avinash Kumar Sharma holding brief of Shri A.K. Rai, learned counsel for the respondents and perused the record.

Learned counsel for the applicant argued that the applicant is seeking family pension on the ground that husband of applicant had been granted temporary status in the department and worked for more than 15 years before he died. He expired before he was regularized. Hence, he is entitled for the family pension at par with other Group ‘D’ employees.

Learned counsel for the respondents vehemently argued that no temporary status employee is entitled for pension until and unless he is absorbed against a permanent Group ‘D’ post. Since the deceased was not regularized before his death, hence widow of the deceased is not entitled for any family pension.

I have considered the rival submissions and have gone through the entire record carefully, including the written submissions filed by the parties.

In the case of Malatikar (Smt.) and others Vs. Union of India and others passed in O.A. No. 1124 of 1989 decided on 8th October, 1991, relied upon by the learned counsel, CAT, Calcutta Bench has observed as under:-

“While it is true that casual railway workers cannot get pensionary benefits till they are regularised but this cannot give a blanket power to defer regularization indefinitely without any satisfactory reason. If the delay is without any justification, the railway workers concerned must be deemed to have been regularized on the dates of their death. In the present case, the respondents have not explained as to why the services of husbands of the widows were not regularized. The widows, therefore, should not be allowed to suffer due to inaction of the respondents. Denial of family pension in such cases would be against all canons of justice, equity and fair play. The employees shall be deemed to have been regualrized on the dates of their death and family pension regaled accordingly.”

Railway has filed SLP No. 12543-46 of 1993 before the Hon’ble Supreme Court against the judgment passed by CAT, Calcutta bench, which has been dismissed by the Hon’ble Supreme Court vide order dated 29.7.1993. Hence the judgment of CAT Calcutta bench has attained finality.

Hon’ble Anadhra Pradesh High Court in the case of The General Manager, South ... vs Shaik Abdul Khader (decided on 23.6.2003), reported in 2003 (4) ALD 560, has observed as under

“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.

Now different provisions of Master Circular 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 (either 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 1-1-1981, the benefit has also been extended to Project Casual Labour."

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."

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 caries forward not only the leave to his credit but also carries forward the service in full. Half of the service rendered by him as casual labour before getting the temporary status has to be counted. Therefore, we do not feel that the Tribunal was wrong in coming to the conclusion it has, although we may not agree with the reasons given by the Tribunal. 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 1-1-83. He was also entitled to get half of the service counted before 1-1-83 from the date he had joined in the railways as casual labour.

Special Leave to Appeal (Civil) No. 24465/2003 has been filed against the judgment dated 23.6.2003 and the said was dismissed vide order dated 24.3.2006 by the Hon’ble Supreme Court as the petitioner did not press the petition. Hence, judgment of Andhra Pradesh has become final.

However, respondents have rejected the claim of the applicant in the light of judgment passed by the Hon’ble Supreme Court in the case of Union of India and others Vs. Rabia Bikaner (decided on 7.7.1997 in Civil Appeal No. 4373 -78 of 1997. In this case Hon’ble Supreme Court has been pleased to observe as under:-

“The question of law that arises for determination is: whether the widow of a casual labourer in Railway Establishment, who died after putting in six month's service and obtaining the status of a temporary post after screening is entitled to family pension under the 1964 Family Pension Scheme? This question was considered by a Bench of this Court in Ram Kumar vs. Union of India [(1988) 2 SCR 138 at 144] this Court hold held thus:

"It is the stand of the learned Additional Solicitor General that no pensionary benefits are admissible even to temporary railway servants and, therefore, that retiral advantage is not available to casual labour acquiring temporary status. We have been shown the different provisions in the Railway Establishment Manual as also the different orders and directions issued by the Administration. We agree with the learned Additional Solicitor General that retiral benefit of pension is not admissible to either category of employees."

The Railway Board in its letter bearing S.no.3214-

Circular no. 720-E/O-IX (Pension) dated October 26, 1965 after examining the question, had stated that "the Family Pension Scheme for Railways employees, 1964 is applicable in the case of Railways employees, 1964 is applicable in the case of regular employees on pensionable establishment. Since the casual labourers will be brought on to the pensionable establishment only on their absorption against regular temporary posts, it follows that they will come under the purview of the scheme from the date of their absorption against the regular temporary posts. In other words, the benefits of the Family Pension Scheme for Railway Employees, 1964 will be admissible in the case of death of such an employee while in service, only if he had completed a minimum period of one year's continuous service from the date he was adsorbed against a regular temporary post".

It is contended by the learned counsel for the respondent-widows by the learned counsel that under paragraph 2511-"Rights and Privileges admissible to the casual labourers who are treated as temporary after completion of six months continuous service" - of the Railway pension. We find it difficult to give acceptance to the contention. It is seen that every casual labourer employed to temporary status. Thereafter, they will be empanelled. After empanelment, they are required to be screened by the competent authority and as and when vacancies for temporary posts in the regular establishment are available, they should be appointed in the order of merit after screening. On their appointment, they in the temporary post. In view of the above position, if any of those employees who had put in the required minimum service of one year, that too after the appointment to the temporary post, died while in service, his widow would be eligible to pension under the Family Pension Scheme, 1964. In all these cases, though some of them have been screened, yet appointments were not given since the temporary posts obviously were not available or in some cases they were not even eligible for screening because the posts become available after the death. Under these circumstance, the respondent-widows are not eligible to the family pension benefits.

The learned counsel strongly relied upon the judgment in Pradhavati Devi vs. Union of India [(1996) 7 SCC 27 ]. Therein, the facts were that from the year 1981 to April 27, 1993, the husband of the appellant had worked as casual worked as casual worker and obtained the status of substitute who were worker and obtained the status of substitutes who were working, as defined under Rule 2315 of the Railway Establishment Manual, in a regular establishment on a regular scale of pay and allowances applicable to those posts in which they were employed, Since he died while working in the regular post, his widow became eligible to claim the benefits of the pension scheme. Thus, in that case, the appellant's husband was a substitute working in a regular scale of pay in the railway establishment. Obviously, he was screened and was also appointed to the temporary post, he was treated as substitute went on leave. under these circumstances, this Court had held that widow of such employee is entitled to the benefit of the family pension. The above ratio is inapplicable to the cases referred to hereinbefore. The question also was considered in a recent judgment of this Court in Union of India vs. Sukanti & Anr. [SLP (C) No.3341/93 etc. decided on July 30, 1996] wherein relying on the ratiral benefit was available to the widow of the casual labour of the who had not been regularised fill his death. Thus, we hold that the view taken by the Tribunals in granting the pensionary benefits to the respondents is clearly illegal.

The appeals are accordingly allowed and the O.As. stand dismissed, but in the circumstances, without costs. However, if any amounts have already been paid pursuant to the orders of the Tribunal, the same may be recovered from them.”

In the instant case, deceased was engaged as casual Gangman on daily rated basis on 1.2.1978 and was granted temporary status w.e.f. 1.11.1985 and while in service, he died on 3.12.1992 before he got regularization. Applicant has worked for about 15 years in the department.

Respondents’ department relying upon the case law of Union of India and others Vs. Rabia Bikaner (supra) has rejected the claim of the applicant for family pension but the ratio laid down in the aforesaid case is not applicable in the present matter, as the deceased employee in the aforesaid case died within 6 months of his regularization and has not completed one year of service. Thus, the benefits of the family pension scheme for Railway Employees, 1964 was not accorded. However, in the present case, deceased employee has completed about 15 years of temporary service in the department before he died. The ratio laid down in the case of Malatikar (Smt.) and others (supra) is equally applicable in the present case. Thus, the impugned order dated 3.12.1992 passed by the department is liable to be set aside. Plea taken by the applicant is liable to be allowed.

Accordingly, O.A. is allowed. Impugned order dated 3.12.1992 (Annexure A-1) is quashed. Respondents are direct to count the temporary service of the deceased for the purpose of family pension to the applicant, in accordance with rules and after counting of temporary service, if deceased fulfils the qualifying service for pensionary benefits, then pay the family pension to the applicant within a period of 4 weeks. Applicant would also be entitled for interest @ 6% per annum from the date it became due and till the date of actual payment.

No order as to costs.