OP(CAT) No.20 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **& THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3[RD] 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** [A _rising 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 24[th] 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 OP(CAT) No.20 of 2022 3 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 OP(CAT) No.20 of 2022 4 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 OP(CAT) No.20 of 2022 5 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 6 OP(CAT) No.20 of 2022 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 OP(CAT) No.20 of 2022 7 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 8 OP(CAT) No.20 of 2022 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 OP(CAT) No.20 of 2022 9 ## **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/P407/1/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/P626/STATEMENT DATED 5.10.2008** **ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED** OP(CAT) No.20 of 2022 10 **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/P407/1/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**