O.P.(CAT) No.181/2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943** **OP (CAT).No.181 OF 2020** **ARISING OUT OF THE ORDER DATED 27.3.2019 IN O.A.NO.180/00126/2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS IN O.A.:** **1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY,HEADQUARTERS OFFICE, PARK TOWN.P.O, CHENNAI-600003. 2 THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY,TRIVANDRUM DIVISION,TRIVANDRUM-14. BY ADV. SMT.ASHA CHERIAN, SC, RAILWAYS** ## **RESPONDENT/APPLICANT IN O.A.:** **N.RAJENDRAN AGED 64 YEARS, S/O NANU, (RETD.GATE KEEPER/OFFICE OF THE SR.SECTION ENGINEER/SOUTHERN RAILWAY/KOTTAYAM, RESIDING AT LAKSHMI BHAVANAM,NAKRATH COLONY,MANNARSALA.P.O, HARIPAD, ALAPPUZHA DISTRICT,PIN-690514.** ## **SRI.T.C.GOVINDA SWAMY** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 22-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(CAT) No.181/2020 ## **ALEXANDER THOMAS & K.BABU, JJ.** **------------------------------------------------------** ## _O.P.(CAT) No.181 of 2020_ _(Arising out of the order dated 27.3.2019 in O.A.No.180/00126/2017 of Central Administrative Tribunal, Ekm Bench)_ ## **---------------------------------------------------** _Dated this the 22[nd] day of March, 2021_ ## _**JUDGMENT**_ ## _**Alexander Thomas, J.**_ The prayers in the aforecaptioned Original Petition filed under Articles 226 & 227 of the Constitution of India are the following : - _“i. to call for the records leading to Exhibit P4 order dated 27.3.2019 in O.A./180/00126/2017 on the files of the Tribunal and quash the same by the issuance of a writ of certiorari or other appropriate writ, direction or order in exercise of the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India ;_ - _ii. Issue such other appropriate writ, order or direction, which this Hon'ble Court may deem fit and proper under the circumstances of the case ;_ - _iii. to allow the above Original Petition with cost to the petitioners.”_ 2. Heard Smt.Asha Cherian, learned Standing counsel for the Railways appearing for the petitioners (Union of India and Sr.Divisional Personnel Officer, Southern Railway) in the 3 O.P.(CAT) No.181/2020 O.P./respondents in the O.A. and Sri.T.C.Govindaswamy, learned Advocate appearing for the sole respondent in the O.P./sole applicant in the O.A. before the Tribunal. 3. The prayers in Exhibit P1 O.A.No.126 of 2017 filed by the respondent herein before the Central Administrative Tribunal, Ernakulam Bench are as follows : - _“(i) Declare that the applicant must be deemed to have attained the status of a temporary employee with effect from 15.9.1972 by operation of a temporary employee with effect from 15.9.1972 by operation of law and direct the respondents accordingly ;_ - _(ii) Direct the respondents to deem the applicant to have attained temporary status with effect from 15.9.1972 and direct further to reckon the 50% of the applicant's service with effect from 15.9.1972 to 22.4.1985 for the purpose of grant of the third financial upgradation benefits under the MACPS and direct the respondents to grant the same with effect from 1.1.2009 in PB1+GP of Rs.2,400/- with all its consequential benefits, including revision of pension and other retirement benefits within a time frame as may be found just, fit and proper by this Hon'ble Tribunal;_ - _(iii) Award costs of and incidental to this application'_ - _(iv) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.”_ 4. The Tribunal, after hearing both sides, has rendered the impugned Exhibit P4 final order dated 27.3.2019 in the above O.A., whereby it has been ordered that, in the light of the dictum laid 4 O.P.(CAT) No.181/2020 down by the Apex Court in the case in _**Union of India and others v. Rakesh Kumar and others [AIR 2017 SC 1691]**_ , the original applicant is entitled to reckon 50% of the casual service for the period from 15.9.1972 to 1.1.1981 that is before obtaining temporary status and further also to reckon 50% of his services from the date of obtaining temporary status till he is regularised i.e, from 1.1.1981 to 22.4.1985 on a regular/temporary post for the purpose of granting him the benefits of financial upgradation as well as revision of pension and all other consequential benefits and to pass orders in that regard within two months, etc. It is this final order at Exhibit P4 rendered by the Tribunal that is under challenge before us at the instance of the Railway Authorities concerned. 5. The respondent had commenced his service as casual labourer in the construction organisation of the Southern Railways on 16.9.1971 and his initial engagement was stated to be under the Permanent Way Engineer/Construction/Southern Railway/ Podanur. The respondent was regularised as per Order No.59/4/85 dated 8.4.1985 issued by the Assistant Engineer, Ernakulam Railway Junction office and he was thus relieved and had joined in the regular post on 22.4.1985. Initially he was granted temporary 5 O.P.(CAT) No.181/2020 status as casual labourer with effect from 1.1.1983 by the Southern Railway Authorities, but later orders were issued correcting that the temporary status given to the petitioner as casual labourer will be with effect from 1.1.1981 as ordered by the Scheme framed in accordance with the judgment rendered by the Apex court in the celebrated case in _**Inder Pal Yadav and others v. Union of India and others [(1985) 2 SCC 648]**_ . It appears that after his regularisation, the respondent has been allotted in the open line wing of the Railway Administration whereas prior to that he was working in the construction department of the Southern Railway. The applicant had superannuated from his service on 31.3.2013 while working as Track Maintainer in PB-1(Rs.5200-20200) plus GP Rs.2000. 6. It appears that 50% of the casual service of the respondent after attainment of temporary status with effect from 1.1.1981 up to his regularisation in the regular post has been taken into account for the purpose of reckoning his pension consequent to his retirement from service on 31.3.2013. The contention of the respondent is that prior to his regularisation, he was working all through out in the construction department of the Southern Railway and construction department is a permanent Department 6 O.P.(CAT) No.181/2020 of the Southern Railway and that merely because one is posted in the construction department of the Southern Railway cannot imply that a casual labourer is posted in a project which is temporary in nature. Further that it has now been held by the Apex Court in the decision as in _**Union of India and others v. Rakesh Kumar and others [AIR 2017 SC 1691]**_ that 50% of the service of the casual labourer before conferment of temporary status of the casual labourer would be reckoned for the purpose of pension etc. and the said case dealt with the case of a casual labourer who was working in the open line wing and not in a project. On this basis, the respondent would point out that there cannot be any distinction between the service rendered by the respondent as casual labourer in the construction department of the Southern Railway which is a permanent department compared to other casual labourers whose service has been rendered in the open line wing of the Railway and that therefore, there is no reason to hold that casual labourer like the respondent who is posted in the construction department which is a permanent department of Southern Railway should be treated to be working in a temporary project and therefore, the benefit of reckoning 50% of the casual labour service prior to attainment of temporary casual 7 O.P.(CAT) No.181/2020 labour status cannot be computed for the purpose of pension, etc. The respondent would place reliance on the judgment of this Court as in Annexure A6 judgment dated 17.2.2016 rendered by the Division Bench of this Court in O.P.(CAT) No.57 of 2016 which dealt with a similar case, etc. The respondent would also place reliance on the dictum laid down by the Apex court in the decision in the celebrated case in L.Robert D’Souza v. Executive Engineer, Southern Railway and another [(1982) 1 SCC 645]. It appears that the Tribunal has allowed the case of the respondent as per the impugned Exhibit P4 final order. 7. The case of the petitioner Railway Authorities is to the effect that it is now well established by the decision of the Apex Court as in _**Union of India and others v. K.G. Radhakrishna Panicker and others [(1998) 5 SCC 111]**_ that the service rendered by a casual labourer in a project prior to 1.1.1981, cannot be treated as qualifying service for the purposes mentioned and other retirement benefits. Further that it has been pleaded in Exhibit P3 reply statement filed by the petitioner Railway Authorities that the respondent was initially posted in the project at Podanur and later that he has been regularised and 8 O.P.(CAT) No.181/2020 posted in the open line wing and that it is only on the basis of the Scheme framed by the Apex Court in the celebrated case in _Inder Pal Yadav and others v. Union of India and others [(1985) 2 SCC_ _648]_ that the Southern Railway Authorities have granted temporary status to the respondent while he was working in the construction wing, with effect from 1.1.1981. That 50% of the casual labour service of the respondent after attainment of the temporary status, with effect from 1.1.1981, has already been reckoned for the purpose of pension and other retirement benefits and casual labour service prior to 1.1.1981 cannot be granted as respondent's service has been engaged as a project casual labourer and hence he is not entitled to claim the benefit etc. 8. It is pertinent to refer to the directions issued by the Apex Court in paragraph No.55 of the case in _Rakesh Kumar_ ( _AIR 2017 SC 1691)_ (supra), which reads as follows : - _“55. In view of foregoing discussion, we hold : (i) the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purposes of calculation of pension._ - _(ii) the casual worker before obtaining the temporary status is also entitled to reckon 50% casual service for purposes of pension._ - _(iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993._ - _(iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for_ 9 O.P.(CAT) No.181/2020 _dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993.”_ 9. It is on the basis of _Rakesh Kumar_ 's case (supra) in paragraph No.55 that the Tribunal has ordered that 50% of the casual labour service of the respondent for the period prior to 1.1.1981. It will also be reckoned for the purpose of pension apart from reckoning 50% of the casual labour service after conferment of temporary status with effect from 1.1.1981, etc. 10. The Division Bench of this Court in Annexure A6 judgment dated 17.2.2016 in O.P.(CAT) No.57 of 2016 has held that dealt with the claim of the Railway in the case where the plea was that the claimant therein was working as a project casual labourer and that therefore, he is not entitled for the present benefit in question. The Division Bench held in paragraph No.6 of Annexure A6 judgment that the petitioners have not produced any materials to show that as a matter of fact respondent's service has been rendered as a project casual labourer for the period prior to 1.1.1981 and that the admitted case of the respondent that he was working in the construction department of the Southern Railway, 10 O.P.(CAT) No.181/2020 which is a permanent department and that merely because the claimant therein was working in the construction department of the Southern Railway as casual labourer prior to 1.1.1981 is no ground to hold that the service rendered by the casual labourer is in a project which is temporary in nature. In that regard, the Division Bench of this Court has placed reliance on the judgment of the Apex Court in _**L.Robert D’Souza v. Executive Engineer, Southern Railway and another [(1982) 1 SCC 645] = [1982 SCC (L&S) 124]**_ . It is pertinent to refer to paragraph No.21 of the judgment of the Apex Court in _L.Robert D’Souza v. Executive Engineer, Southern Railway and another [(1982) 1 SCC 645_ ], which reads as follows : _“21. Rule 2501(b)(t) clearly provides that even where staff is paid from contingencies, they would acquire the status of temporary railway servants after expiry of six months of continuous employment. But reliance was placed on Rule 2501(b)(ii) which provides that labour on projects, irrespective of duration, except those transferred from other temporary or permanent employment would be treated as casual labour. In order to bring the case within the ambit of this provision it must be shown that for 20 years appellant was employed on projects. Every construction work does not imply project. Project is correlated to planned projects in which the workman is treated as work-charged. The letter dated September 5, 1966, is by the Executive Engineer, Ernakulam, and he refers to the staff as belonging to construction unit. It will be doing violence to language to treat the construction unit as project. Expression 'project' is very well known in a planned development. Therefore,the assertion that the appellant was working on the project is belied by two_ 11 O.P.(CAT) No.181/2020 _facts : (i) that contrary to the provision in Rule 2501 that persons belonging to casual labour category cannot be transferred, the appellant was transferred on innumerable occasions as evidenced by orders Ext.P1 dated January 24, 1962, and Ext.P2 dated August 25, 1964, and the transfer was in the office of the Executive Engineer (Construction); (ii) there is absolutely no reference to project in the letter, but the department is described as construction unit. If he became surplus on completion of project there was no necessity to absorb him. But the letter dated September 5, 1966, enquires from other Executive Engineers, not attached to projects, whether the surplus staff including appellant could be absorbed by them. This shows that the staff concerned had acquired a status higher than casual labour, say temporary railway servant. And again construction unit is a regular unit all over the Indian Railways. It is a permanent unit and cannot be equated to project. Therefore, the averment of the Railway Administration that the appellant was working on project cannot be accepted. He belonged to the construction unit. He was transferred fairly often and he worked continuously for 20 years and when he questioned the bona fides of his transfer he had to be re-transferred and paid wages for the period he did not report for duty at the place where he was transferred. Cumulative effect of these facts completely belie the suggestion that the appellant worked on project. Having rendered continuous uninterrupted service for over six months, he acquired the status of a temporary railway servant long before the termination of his service and, therefore, his service could not have been terminated under Rule 2505.”_ A reading of paragraph No.21 of the judgment of the Apex Court in _L.Robert D’souza_ ’s case (supra) would show that Rule 2501(b)(i) of the Indian Railway Establishment Manual provides that labour on projects, irrespective of duration, except those transferred from temporary or permanent employment would be treated as casual labour. The Apex Court has noted that in order to bring the case 12 O.P.(CAT) No.181/2020 within the ambit of the said provision, it must be shown that the appellant therein was employed on projects, etc. The Apex Court has held categorically that every construction work does not imply project and project is correlated to planned projects in which the workman is treated as work-charged and that the expression ‘project’ is a very well known concept in planned development. Further the Apex Court also categorically held that the construction department of the Southern Railway is a regular unit/department all over the Indian Railways and it is a permanent unit and cannot be equated to project and therefore, the averment of the Railway administration that the appellant was working on project cannot be accepted, etc. It is on this basis that the Division Bench of this Court, as per Annexure A6 judgment, has repelled the contentions of the petitioner Railways therein and has held that the service of the respondent therein as casual labourer even prior to conferment of the casual labourer temporary status with effect from 1.1.1981 should be reckoned for the purpose of determining pension. It is seen that the respondent has asserted in the pleadings that he was appointed as casual labourer initially in the construction department of Southern Railway and later, he was regularised in the open line wing of the Southern Railway. The 13 O.P.(CAT) No.181/2020 Railway have taken up a case in Exhibit P3 reply statement that he was appointed in project of doubling as averred in paragraph No.5 on pages 2 and 3 of Exhibit P3 reply statement that the respondent was engaged by the construction organisation in the project of doubling at Podanur and after completion, he was engaged in the project of doubling at Trichur and later on he was granted temporary status with effect from 01.01.1981. However, there are no specific and precise pleadings on the part of the respondent either in the O.A. or in response to the pleadings of Southern Railway in Exhibit P3 reply statement by filing rejoinder of the respondent, etc. that all throughout the respondent was working in the construction department at that time and that he was never being engaged in a temporary project and that merely because the respondent's service by utilising the construction department will not mean that he was working for any temporary project, so as to treat in a project as casual labourer and so as to deny his right to count 50% of his casual labour service prior to casual labourer temporary status with effect from 1.1.1981 for the purpose of reckoning pension, etc. True that the abovesaid aspect is only a technical lacuna. But, due to lack of pleadings, we cannot now hold that the matter in issue is fully covered in favour of the 14 O.P.(CAT) No.181/2020 original applicant in terms of Annexure A6 judgment dated 17.2.2016 of the Division Bench of this Court in O.P.(CAT) No.57 of 2016 as well as in paragraph No.21 of the judgment of Apex Court in _L.Robert D'Souza_ ' s case (supra). 11. In that view of the matter, we are inclined to remit the matter to the Tribunal to enable both sides to submit necessary pleadings in that regard. It has to be borne in mind that going by the dictum laid down by the Apex Court in paragraph No.21 of _L.Robert D'Souza_ ' s case (supra) as well as the Division Bench of this Court in cases as in Annexure A6, merely because it is recited by the Railways that casual labourer has been engaged in the construction department of the Southern Railway does not and cannot by itself mean that the respondent’s service has been rendered as a project casual labourer. In a case where the respondent pleads that he was always engaged in the construction wing and that his work there cannot be equated to the temporary project, etc., then it is for the Railways to show not merely that the respondent has been posted in the construction department. That his service was actually rendered in a project as understood in paragraph No.21 of _L.Robert D'Souza_ ' s case (supra) and in the absence of conclusive materials, merely because the casual 15 O.P.(CAT) No.181/2020 labourer has been appointed in the construction department of the Southern Railway, by itself cannot mean that his service has been rendered only in a project as a project casual labourer, etc. It has to be borne in mind that the specific meaning of the concept of project has already held by the Apex Court in paragraph No.21 of _L.Robert D'Souza_ ' s case (supra), construction department is a permanent department of Southern Railways all throughout the Indian Railways. It is also a matter of common knowledge that doubling works of railway tracks in many parts of the State has been going on for years and years and merely because the service of a casual labourer has been engaged formally in the construction department and not in the regular open line does not and cannot mean that he should be equated with a project casual labourer. To establish that the service of the casual labourer prior to 1.1.1981 was as a project casual labourer, the Railway should necessary establish the factum of work in a project as understood in paragraph No.21 of _L.Robert D'Souza_ ' s case (supra). In the light of the above aspect, the matter would require serious reconsideration in the hands of the Tribunal. 12. Accordingly, it is ordered that the impugned Exhibit P4 final order dated 27.3.2019, rendered by the CAT, Ernakulam Bench in 16 O.P.(CAT) No.181/2020 O.A.No.180/00126 of 2017 will stand set aside and consequently it is also ordered that O.A.No.180/00126 of 2017 will be restored to the file of the Tribunal for consideration and decision afresh. The respondent may submit rejoinder statement to Exhibit P3 reply statement filed by the Railway without any further delay. Railway will also be at liberty to file their additional pleadings in the matter. The Tribunal after affording reasonable opportunity of being heard to both sides, will render its final verdict in the matter, without much delay, preferably within a period of three months, at any rate, within an outer time limit of four months or within any time limit that is found reasonable and appropriate by the Tribunal in the interest of justice. While doing so, the Tribunal may render its verdict taking note of the dictum laid down by the Apex Court and by this Court in the decisions cited supra. With these observations and directions, the above Original Petition (CAT) will stand disposed of. ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **K.BABU, JUDGE** csl/scs 17 O.P.(CAT) No.181/2020 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF O.A.NO.180/00126/2017 FILED BY THE APPLICANT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** - **ANNEXURE A1 TRUE COPY OF THE LETTER SUBMITTED BY THE APPLICANT DATED 10-07-2015 TO THE 2ND RESPONDENT** - **ANNEXURE A2 TRUE COPY OF RAILWAY BOARD ORDER BEARING RBE NO.101/2009 DATED 10.06.2009** - **ANNEXURE A3 TRUE COPY OF THE RAILWAY BOARD ORDER BEARING RBE NO.215/2009 DATED 04.12.2009.** - **ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 01.12.2015,ADDRESSED TO THE 2ND RESPONDENT** **ANNEXURE A5 TRUE COPY OF THE ORDER IN OA.NO.960/2012 DATED 22.07.2015,RENDERED BY THE TRIBUNAL. ANNEXURE A6 TRUE COPY OF THE JUDGMENT IN OP(CAT)NO.57/2016 DATED 17.2.2016,RENDERED BY THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION FOR CONDONATION OF DELAY (MA/180/00179/2017)FILED BY THE RESPONDENT/APPLICANT.** **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RAILWAYS IN OA/180/00126/2017.** - **ANNEXURE R1 TRUE COPY OF THE CALCULATION SHEET. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 27.03.2019 IN OA/180/00126/2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.**