Kerala High Court
Union Of India vs S.Paul Raj on 24 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 24TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944
OP (CAT) NO. 20 OF 2022
AGAINST THE ORDER DATED 28.10.2019 IN OA 189/2019 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN OA:
1 UNION OF INDIA,
REPRESENTED BY THE GENERAL MANAGER,
SOUTHERN RAILWAY, PARK TOWN,
CHENNAI-600 003.
2 THE SR. DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, TRIVANDRUM DIVISION,
TRIVANDRUM-14.
BY ADV ASHA CHERIAN
RESPONDENT/APPLICANT IN OA:
S.PAUL RAJ,S/O LATE SELVAMANI,
RETIRED SENIOR TRACKMAN, PF NO 4293319,
TRIVANDRUM DIVISION, SOUTHERN RAILWAY ,
RESIDING AT PULLIYAN VILAI, MANGARI P.O.,
KARANGAL, KANYAKUMARI DISTRICT,
PIN CODE-629 157
BY ADVS.
MARTIN G.THOTTAN
VARGHESE JOHN(K/248/2005)
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON
24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(CAT) No.20 of 2022 2
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
=============================
O.P (CAT) No.20 of 2022
[Arising out of impugned order dated 28.10.2019 in
O.A. No.180 of 2019 on the file of the CAT, EKM Bench]
=============================
Dated this the 24th day of March, 2022
JUDGMENT
Viju Abraham, J.
The above Original Petition is filed by the respondents in
O.A.No.189 of 2019 on the file of the Central Administrative
Tribunal, Ernakulam Bench aggrieved by Exhibit P9 order dated
28.10.2019.
2. For the sake of convenience, parties will be referred to
in this judgment as they are arrayed in the O.A. The applicant
approached the Central Administrative Tribunal, Ernakulam Bench
seeking the following reliefs:
"I) Declare that the applicant is entitled to reckon the 50% of his
casual service rendered by him from the year 1972 onwards
prior to his absorption, as qualifying for pensionary benefits
and to direct that respondents accordingly.
II) Direct the respondents to revise and disburse the pensionary
benefits to the applicant on the basis of the above declaration.
III) Pass such other orders or directions as deemed fit."
3. The contention of the applicant is that he was initially
engaged as a casual labourer under the Permanent Way Inspector
(Construction), Southern Railway, Poddanur on 16.12.1972 and
continued as casual labourer till his service was terminated for
want of work on 09.11.1974 and upto that point the applicant was
having more than 360 days of casual service as is evident from
Annexure A1 service card issued to the applicant. Thereafter in the
year 1978, the applicant was engaged as a casual labourer under the
Permanent Way Inspector, Nagercoil and continued up to
01.08.1981 and thereafter he was again re-engaged from
22.03.1989 to 29.04.1989 as is evident from Annexure A2 letter
dated 21.03.1989. It is taking into account 983 days of casual
service rendered in the Trivandrum Division the applicant's name
was entered in the live register maintained by the respondents as
directed by the Hon'ble Supreme Court in Inder Pal Yadav &
Ors. v. Union of India & Ors. (1985) 2 SCC 648 and the
applicant was included as serial number 1773. Considering the
position of the applicant in the live register, he was regularized as
Trackman w.e.f 10.03.1999 and thereafter, superannuated from
service on 30.09.2008.
4. The grievance raised by the applicant before the
Tribunal was that the respondents to arrive at the net qualifying
service of the applicant as 9.5 years only took into consideration the
applicant's regular service from 10.03.1999 to 30.09.2008. The
entire casual service of the applicant which comes to about 5 years
was not reckoned as qualifying service for the grant of pensionary
benefits. This has resulted in denial of pension to the applicant. The
applicant relies on the judgment of the Apex Court in Union of
India & Ors. v. Rakesh Kumar & Ors., AIR 2017 SC 1691 in
support of his contention.
5. A detailed reply statement was filed by the respondents
and paragraphs 2 and 8 of the same read as follows:
"2) At the outset, it is humbly submitted that applicant herein is
seeking for counting of 50% of the Casual Labour Service
periods without giving details of the Casual Labour periods to be
counted for pensionary benefits sans supportive documents, i.e.,
Original Casual Labour Service Card. On production of the
same due benefits will be granted as per the order of the Hon'ble
Supreme Court passed in Union of India & other vs Rakesh
Kumar & others, subject to verification of genuineness of the
Casual Labour Service Card. However, in order to redress the
grievance of the applicant after receiving the OA, a letter was
sent to the applicant's home address as given in the OA's
verification portion, requesting the applicant to submit his
Original Casual Labour Card for verification of his casual
labour services as claimed, by Registered Post. Applicant is yet
to submit the Original Casual Labour Card for further action, it
is humbly submitted.
........... ............ ..........
8) Regarding the averments in paragraph 5 of the Grounds, it is
humbly submitted at the time of retirement i.e., on 30.09.2008
as per the extent rules applicable at that relevant point of time,
applicant was granted benefits as applicable to him for the
services rendered by him, i.e. 9.5 years. For being eligible to
receive retiring pension one has to put minimum of 10 years
qualifying service. And the order to count 50% of Casual Labour
services along with regular services for granting pensionary
benefits was passed by the Hon'ble Supreme Court on
24.03.2017. On submission of Original Casual Labour Service
Card, 50% of his services will be added to his regular service,
after due verification, it is humbly submitted."
From the said reply statement it could be seen that the respondents
are agreeable to grant the benefit of the judgment of the Apex Court
in Rakesh Kumar's case supra subject to verification of
genuineness of casual labour service card and contended that in
spite of a request to produce the same the applicant has not
produced it till date. A rejoinder was filed by the applicant
contending that as per Annexure A6 letter dated 26.06.2019 he was
directed to produce the original casual labour card for verification
and that as per Annexure A7 covering letter dated 01.07.2019, a
photocopy of the service card was forwarded and it was informed in
the said covering letter that on 22.03.1989 he has submitted the
original service card before the respondents. In support of the
claim, Annexure A8, a copy of the merged seniority list of casual
labourers maintained in the Trivandrum Division was produced in
which the applicant is shown as serial No. 1773. The applicant has
also produced Exhibit P10 along with this Original Petition, which
is an integrated seniority list of Project Casual labourers in
Trivandrum Division as on 01.04.1985 to show that the applicant
was engaged as a casual labourer.
6. The Tribunal, as per Exhibit P9 order dated 29.10.2019
entered a finding that the action of the respondents in not
reckoning the entire casual services of the applicant of nearly 5
years as qualifying service for pension is in clear violation of the
directions issued by the Apex Court in Rakesh Kumar's case
supra and held that going by the dictum laid down by the Apex
Court in the said judgment, if 50% of the causal service rendered by
the applicant is taken into account he would qualify for pensionary
benefits. The Tribunal also relied on Annexure A8 copy of seniority
list and held that the said document will clearly establish that the
applicant had put in 983 days of casual service and therefore, he is
eligible to count 50% of casual service for calculating the period of
service for grant of pensionary benefits and held that the applicant
is entitled to minimum monthly pension, however, restricting the
arrears of pensionary benefits to 3 years prior to the filing of the
Original Application. It is assailing Exhibit P9 order passed by the
Tribunal on 28.10.2019, that the present Original Petition is filed.
7. The main contention raised in the Original Petition is
that the judgment in Rakesh Kumar's case supra, cannot be
applied in the facts of this case, in as much as, the same applies
only to casual labourers who have obtained temporary status and
since the applicant has not obtained temporary status during his
entire service, the said judgment cannot be relied on.
8. After hearing the parties at length, we feel that it is not
necessary to consider in detail the contention of the respondents
regarding the applicability of Rakesh Kumar's case supra and
also the claim of the applicant that he has to his credit 983 days of
casual labour service, etc., in view of the subsequent development
in this case as is revealed from Exhibits R1(a) and R1(b) produced
by the applicant along with I.A.No.2 of 2022 in the present Original
Petition. Pursuant to Exhibit P9 order passed by the Tribunal,
which is impugned in this Original Petition, as per Exhibit R1(a)
dated 20.12.2019 the respondents after verifying the records and
finding that the applicant has rendered 983 days of casual labour
service, held that 50% of the casual labour service rendered by him
is to be counted along with the regular service for the purpose of
granting pension. Further, as per Exhibit R1(b) communication
dated 14.01.2020 the applicant was informed that as per Exhibit P9
order passed by the Tribunal, the total qualifying service of the
applicant has been increased from 9.5 years to 11 years and the
applicant was directed to attend the office immediately to collect
the pension book to enable the processing of the settlement of
benefits. Thus, it could be seen that the respondents have accepted
the directions in Exhibit P9 order passed by the Tribunal and
issued further orders in implementation of the same. In view of the
subsequent developments as stated above, we are not interfering
with Exhibit P9 order of the Tribunal dated 28.10.2019. It is
discernable from the records that the applicant is aged about 74
years. The respondent Railway may take urgent steps to implement
the directions in O.A.No.189 of 2019 dated 28.10.2019, without any
further delay. Since, we are disposing of the present O.P on the
basis of the subsequent developments in the matter as is evident
from Exhibit R1(a) dated 20.12.2019 & Exhibit R1(b) dated
14.01.2020, we are not entering a finding on the merits of the
matter except to hold that the ratio decided by the Tribunal in
Exhibit P9 order dated 28.10.2019 in O.A.No.189 of 2019 need not
be treated as a precedent.
The Original Petition is disposed of as above.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
VIJU ABRAHAM, JUDGE
pm
APPENDIX OF OP (CAT) 20/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF OA NO 180/00326/2010 FILED
BY THE APPLICANT BEFORE CAT/ERNAKULAM
(WITH ANNEXURES A1 & A2)
ANNEXURE A1 TRUE COPY OF REPRESENTATION DATED
30.8.2008
ANNEXURE A2 TRUE COPY OF REPRESENTATION DATED
15.7.2009
Exhibit P2 TRUE COPY OF REPLY STATEMENT FILED BY
RAILWAY IN OA NO 180/00326/2010
Exhibit P3 TRUE COPY OF REJOINDER IN OA NO
180/00326/2010
Exhibit P4 TRUE COPY OF ADDL REPLY SETTLEMENT FILED
BY RAILWAY IN OA NO 180/00326/2010
Exhibit P5 TRUE COPY OF COMMON ORDER DATED
17.7.2012 IN OA NO 180/00326/2010 AND
CONNECTED CASES OF CAT/ ERNAKULAM
Exhibit P6 TRUE COPY OF O.A NO 180/00189/2019 FILED
BY THE APPLICANT BEFORE CAT/ERNAKULAM
ANNEXURE A1 TRUE COPY OF THE SERVICE CARD ISSUED TO
THE APPLICANT
ANNEXURE A2 TRUE COPY OF THE ORDER NO V/P-
407/1/ENGAGEMENT OF CLS DATED 21.3.1989
ANNEXURE A3 TRUE COPY OF THE SERVICE CERTIFICATE
ISSUED TO THE APPLICANT
ANNEXURE A4 TRUE COPY OF THE ORDER NO V/P-
626/STATEMENT DATED 5.10.2008
ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED
28.11.2018 SUBMITTED BY THE APPLICANT
Exhibit P7 TRUE COPY OF REPLY STATEMENT FILED BY
RAILWAY IN OA NO 180/00189/2019
Exhibit P8 TRUE COPY OF REJOINDER FILED BY
APPLICANT IN OA NO 180/00189/2019
ANENXURE A6 TRUE COPY OF THE LETTER NO V/P-
407/1/TVB/VOL.XII DATED 26.6.2019
ANENXURE A7 TRUE COPY OF THE LETTER DATED 1.7.2019
SUBMITTED BY THE APPLICANT
ANNEXURE A8 TRUE EXTRACT OF THE MERGED SENIORITY
LIST MAINTAINED BY TRIVANDRUM DIVISION
OF SOUTHERN RAILWAY
Exhibit P9 TRUE COPY OF ORDER DATED 28.10.2019 IN
OA NO 180/00189/2019 OF CAT/ERNAKULAM
Exhibit P10 TRUE COPY OF INTEGRATED SENIORITY LIST
AS ON 1.4.1985 OF PROJECT CASUAL
LABOURERS IN THE TERRITORIAL
JURISDICTION OF THIRUVANANTHAPURAM
DIVISION
RESPONDENT'S EXHIBITS
EXT.R1(a) TRUE COPY OF THE ORDER DATED 20.12.2019 BEARING
NO.V/P.407/I/TVB/vOL.III
EXT.R1(b) TRUE COPY OF THE ORDER BEARING
NO.V/P.626/eNG/307/08 DATED 14.01.2020
EXT.R1(c) TRUE COPY OF LETTER DATED 3.11.2020 SUBMITTED TO
THE SECOND RESPONDENT
