Union Of India vs Smt. Santosh
2009 Latest Caselaw 2629 Del

*               HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 1762/2007



                        Judgment reserved on: July 09, 2009
%                       Judgment delivered on: July 15, 2009


      Union of India                            ..... Petitioner

                        Through: Mr.P.K.Dey with
                                 Mr.N.B.Joshi Advocats

                    Versus


      Smt. Santosh                              ..... Respondent

                        Through: Mr.A.K.Trivedi, Advocate

      Coram:

      HON'BLE MR. JUSTICE MADAN B. LOKUR
      HON'BLE MR. JUSTICE A.K. PATHAK


      1. Whether the Reporters of local papers may
         be allowed to see the judgment?                    Yes

      2. To be referred to Reporter or not?                 Yes

      3. Whether the judgment should be reported            Yes
         in the Digest?

A.K. PATHAK, J.

1. Vide order dated 8th August, 2006 passed in OA No.

165/2006 the Central Administrative Tribunal, Principal Bench,

New Delhi (for short hereinafter referred to as "Tribunal") has

directed the Petitioner to accord family pension to the

Respondent from the due date along with all arrears within a

period of two months. Being aggrieved by this order, Petitioner

has filed this writ petition praying therein that the order passed

by the Tribunal be quashed.

2. Respondent's case as set up before the Tribunal is that her

late husband Shri Chottey Lal was appointed as Khallasi with the

Petitioner on casual basis. On completion of 120 days he was

granted temporary status and regular pay scale. Thereafter, he

was screened and declared medically fit in B-1 category. In the

year 1990 he was considered for regularization, but before

completion of process of regularization he unfortunately died on

22nd May, 1991 in a train accident while performing his duties.

Claim of the Respondent for grant of family pension was illegally

rejected by the Petitioner vide order dated 6th December, 2004 on

the ground that Shri Chottey Lal was not a regular employee.

3. As per the Petitioner, Shri Chottey Lal was appointed as

casual labour on 5th May, 1984 and after completion of 120 days

he was engaged as substitute C & W Khallasi. Screening of Shri

Chottey Lal was to be held in the year 1993 along with others,

but unfortunately he expired on 22nd May, 1991. At the time of

his death, Shri Chottey Lal was a casual labour and his widow

was not entitled to family pension.

4. Tribunal held that Respondent in para 4.2 of Original

Application had specifically averred that Shri Chottey Lal, having

been employed as a "substitute" had acquired temporary status

after working for four months. This averment was not specifically

controverted by the Petitioner in their reply. It was only stated

that Shri Chottey Lal could not be screened along with others

and none of his juniors were regularized till 22nd May, 1991.

Under the Establishment Rules of Railways it was provided that a

casual worker or a substitute who works for 120 days

continuously without any break acquires status of a temporary

servant. Petitioner had itself taken a plea of completion of 120

days on 31st July, 1988 and engagement of husband of the

Respondent as substitute C & W Khallasi provisionally in the

grade of Rs.750-940/- on 11th August, 1989, therefore, Late Shri

Chottey Lal had acquired temporary status on expiry of four

months. It was also observed by the Tribunal that casual worker

is never appointed or engaged on a definite pay scale. Tribunal,

by placing reliance on Prabhavati Devi Vs. Union of India &

Others, reported in (1996) 7 Supreme Court Cases 27, has held

that Shri Chottey Lal had acquired temporary status and his

widow was entitled to family pension.

5. Learned counsel for the Petitioner has vehemently

contended that Shri Chottey Lal was initially appointed as casual

labour and after completion of 120 days he was engaged as

substitute C & W Khallasi pending screening provisionally in the

grade of Rs.750-940 on 11th August, 1989. Since he was not

screened for regular post till he died, he had not acquired

temporary status as per the rules. He was a casual labour,

therefore, his widow was not entitled to family pension. As per

para 1501 of Railway Establishment Manual, "casual labour",

including "casual labour with temporary status", would not fall

within the ambit and scope of "temporary railway servant", thus,

Shri Chottey Lal was not entitled to rights and privileges as

available to a temporary railway servant. Accordingly,

Respondent being widow of a casual labour was not entitled to

the benefit of family pension. He has placed reliance on Union of

India and Others Vs. Rabia Bikaner and Others reported in

(1997) 6 Supreme Court Cases 580. It was further contented

that Prabhavati Devi's case (Supra) was taken note of in this

judgment by the Supreme Court but was distinguished and

cannot be relied upon. Learned counsel has also placed reliance

on a judgment titled General Manager, North West Railway &

Others Vs. Chanda Devi reported in (2008) 2 Supreme Court

Cases 108.

6. Learned counsel for the Respondent has vehemently

contended that Shri Chottey Lal was initially appointed as casual

labour, but after completion of 120 days he was appointed as

substitute Khallasi in a regular pay scale and he continued to

work on the said post till he died on 22nd May, 1991 i.e.for more

than 1 year 9 months. Shri Chottey Lal being "substitute"

became entitled to all the rights and privileges, as were

admissible to a temporary railway servant, on completion of four

months continuous service in view of para 1515 of Railway

Establishment Manual. Accordingly, Respondent was entitled to

the family pension.

7. We have considered the rival contentions of both the parties

on the face of record and do not find any force in the contentions

of learned counsel for the Petitioner. Para 1501 of Railway

Establishment Manual defines a "temporary railway servant".

However, it does not deal with the category of "substitutes".

Definition of "substitutes" is contained in para 1512 of Railway

Establishment Manual. Rights and privileges admissible to

"substitutes" have been defined in para 1515 of Railway

Establishment Manual which provides that "substitutes" should

be afforded all the rights and privileges as may be admissible to a

temporary railway servant from time to time, on completion of

four months continuous service.

8. In its counter affidavit filed before the Tribunal, petitioner

has admitted that Shri Chottey Lal was appointed as casual

labour on 5th May, 1984 and after completion of 120 days he was

engaged as substitute C & W Khallasi pending screening

provisionally in the grade Rs.750-940 on 11th August 1989. It has

also not been denied that he continued to work on the said post

in that capacity till he died on 22nd May, 1991. It is clear from the

above that Shri Chottey Lal continued to work for more than 1

year 9 months as substitute C & W Khallasi in the grade of

Rs.750-940/-. We are of the opinion that Shri Chottey Lal thus

became entitled to all the rights and privileges available to

temporary railway servant in view of para 1515 of Railway

Establishment Manual. We are also of the view that Late Shri

Chottey Lal having been appointed as substitute C & W Khallasi

in the regular grade of Rs.750-940/- on 11th August, 1989 and

since he continued to work for more than one year and nine

months in the said capacity till he died he cannot be termed as

"casual labour" or "casual labour with temporary status". In our

view Tribunal has rightly observed that a casual worker is never

engaged in a regular grade and/or pay scale. Since Shri Chottey

Lal was appointed as "substitute" against a regular grade it

cannot be said that he was working as casual labour and/or

casual labour with temporary status.

9. In Prabhavati Devi's case (supra) Supreme Court has held

that a casual worker in Railways acquiring the status of a

"substitute" and after continuing as such for over a year and

having acquired status of temporary railway servant his widow

and children would become entitled to family pension. The

present case is squarely covered by the judgments of the

Supreme Court. In our view, Tribunal has rightly directed the

Petitioner to grant benefit of family pension to the Respondent

from the due date along with all arrears within a period of two

months following the dicta of Supreme Court.

10. Judgments relied upon by the learned counsel for the

Petitioner are in different facts and are of no help to the

Petitioner. In Rabia Bikaner's case (supra) it was held that a

casual labourer in Railways, who died after putting in six

months' service and before his appointment to a temporary post,

his widow was not entitled to family pension. Similarly, in

Chanda Devi's case (supra), it was held that widow of a casual

labourer was not entitled to family pension. In these cases, rights

and privileges which were amenable to a "substitute" have not

been discussed. Prabhavati Devi's case (supra) was distinguished

in Rabia Bikaner's case (supra) as it was in different context and

facts.

11. In view of the above, we are of the opinion that Tribunal has

rightly held that Shri Chottey Lal had acquired temporary status

and his widow was entitled to the benefit of family pension.

Accordingly, writ petition is dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

July 15, 2009 rb