Allahabad High Court
Union Of India & Others vs Paras Nath And Another on 4 September, 2017
Bench: Amreshwar Pratap Sahi, Rajiv Lochan Mehrotra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 37
Case :- WRIT - A No. - 49516 of 2008
Petitioner :- Union Of India & Others
Respondent :- Paras Nath And Another
Counsel for Petitioner :- V. K. Goel,Prashant Mathur
Counsel for Respondent :- S.C.,Rajesh Yadav,Rakesh Verma
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajiv Lochan Mehrotra,J.
Heard Sri Prashant Mathur, learned counsel for the petitioners.
The Railways have come up assailing the order of the Tribunal dated 28th May, 2008 and the rejection of the review application on 15th July, 2008.
The challenge raised is on the ground that the Tribunal while proceeding to determine the qualifying years of service for extending post retiral benefits to the contesting respondent has committed a manifest error by calculating it to the extent of 32 years. However, the Tribunal has proceeded to reduce the said benefit by calculating the length of service of the respondent employee to be 27 years 6 months and 10 days on the ground that the respondent himself has claimed the said length of service.
The stand taken by the Railways before the Tribunal was that there is a distinction between the length of service and the qualifying years of service for pensionary benefits on the basis of rules applicable. For this it was pointed out that as per the office memorandum dated 14th May, 1968 and clarified later on by the Railway Board letter dated 14th October, 1980 for the purpose of adding benefits towards qualifying years of service, in order to qualify for pension a casual labourer with a temporary status would be entitled for 50% of his such services to be counted towards qualifying service. The same has been quoted in-extenso in paragraph 6 of the writ petition which was also the stand taken before the Tribunal.
The respondent's contention is that he was appointed as a casual labourer in 1973 and was given the temporary status as a casual labourer with effect from 21st November, 1978 which should be treated to be his date of regular appointment for the purpose of qualifying years of service. It is undisputed that the regularization order of the respondent was passed on 6th December, 1989. Thus, the respondent came to be regularized on 6th December, 1989 and he retired from his services on 31st May, 2006. It is in this background that the respondent claimed that he had worked for 27 years and more and therefore, the multiplier which is to be adopted for payment of pensionary benefits should be accordingly employed and the refusal to do so has vitiated the action of the petitioners.
The Tribunal proceeded to analyze the said dates and came to the conclusion that the respondent had worked for 27 years 6 months. It also went on to observe that as a matter of fact, keeping in view his length of service the multiplier which ought to be adopted is more than that but since the respondent had claimed only those services which he has rendered from 1973 onwards, therefore, he was entitled to the benefit thereof.
Learned counsel for the respondent submits that the certificate of service which has been issued by the petitioner-railways also certifies the length of service of the respondents. A copy of the said certificate has been filed alongwith the counter affidavit which is dated 1st June, 2006 recording his length of service.
Having considered the aforesaid submissions and the documents on record, what we find is that the respondent was working as a gate keeper and he retired from the Railways on 31st May, 2006. Prior to this, the petitioner was working as a casual labourer from 1973 till 21st November, 1978. On 21st November, 1978 according to the petitioner-railways he was extended the benefit of temporary status of a casual labourer. The regularization order came into effect on 6th December, 1989. The petitioners are therefore, right in their submission that 50% of the period from 21.11.1978 to 6.12.1989 is to be only added for the purpose of pensionary benefits which is in compliance of the office memorandum dated 14th May, 1968 and the Railway Board letter of 1980 referred to hereinabove.
No other rule or contrary circular or letter of the Railway Board has been placed before the Court so as to interpret the period of qualifying years of service differently. Consequently, the petitioners are right in their submission that apart from the aforesaid qualifying years of service the respondent who became regular with effect from 01.12.1989 and retired on 31st May, 2006 is entitled for such calculation in the terms as referred to hereinabove. What we find is that the Tribunal has completely overlooked the aforesaid office memorandum and its impact in order to calculate the qualifying years of service. There is a clear distinction between the length of service of the respondent and his qualifying years of service for the purpose of pensionary benefits. A review application was filed before the Tribunal but the same was rejected on the ground that no ground for review has been made out. We do not find any justification for rejecting the review application inasmuch as there was an error apparent on the face of record in the original judgment dated 28th May, 2008 itself. We find that the Tribunal did not take into account the relevant rules and circulars applicable to the controversy and therefore, arrived at a wrong conclusion.
We accordingly, set aside the impugned order of the Tribunal dated 28th May, 2008 and the order passed on the review application on 15th July, 2008. The writ petition is allowed, the claim petition of the respondent stands dismissed.
The necessary corrections with regard to the substitution of the heirs of the respondent be also carried out within 24 hours.
Order Date :- 4.9.2017
S.Chaurasia
