Union of India and Others v Kamala, D/o. Kanakaraj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938** **WP(C).No. 846 of 2008 (S) --------------------------** ## **AGAINST THE ORDER/JUDGMENT IN OA 111/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 25-07-2007** **PETITIONER(S):** **-------------** **1. UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY,, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3.** **2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.** **3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.** **BY ADVS. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS SRI.JAMES KURIAN, SC, RAILWAYS** **RESPONDENT(S):** - **--------------** **KAMALA, D/O. KANAKARAJ,** **RETRENCHED CASUAL LABOUR, SOUTHERN RAILWAY, PALGHAT DIVISION, RESIDING AT CHATTANKUNNUPARAMBU,, PALLIPURAM POST, PALGHAT DISTRICT.** **R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SMT.KALA T.GOPI R1 BY ADV. SMT.T.N.SREEKALA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kkj** ## **WP(C).No. 846 of 2008 (S)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: TRUE EXTRACT PARARGRAPH OF 2513 OF THE RAILWAY ESTABLISHMENT MANNUAL (1968) EDITION** **EXT.P2: TRUE COPY OF O.A.NO.111/2007 ALONG WITH ANNEXURES EXT.P3: TRUE COPY OF REPLY STATEMENT FILED IN O.A.NO.111/2007 ALONG WITH ANNEXURES** **EXT.P4: TRUE COPY OF ORDER DATED 25.07.2007 OF CAT / ERNAKULAM IN O.A.NO.111/2007 ALONG WITH ANNEXURES** ## **RESPONDENTS' EXHIBITS** **NIL** **// TRUE COPY //** **PA TO JUDGE** **K.SURENDRA MOHAN & P.V.ASHA, JJ. --------------------------------------------W.P.(C) No.846 of 2008 ---------------------------------------------Dated this the 7[th] day of April, 2016** ## **J U D G M E N T** ## Surendra Mohan, J. The respondents in O.A.No.111 of 2007 challenge the order of the CAT, Ernakulam dated 25.07.2007 allowing the Original Application. The respondent herein is a retrenched Railway Casual Labourer. She had worked during 1981 and 1982 and was retrenched thereafter. However, her name was borne in the Live Register of Casual Labourers as Sl.No.772. She sought for her re-engagement/absorption against one of the existing vacancies of Trackman/Gangman (Group D) in terms of the directions of the Supreme Court in **Inder Pal Yadav v. Union of India** ((1985) 2 SCC 648) and the consequential orders issued by the Railway Board. 2. In terms of the sanction dated 27.1.2003 issued by the Chief Personnel Officer, Madras for filling up 270 vacancies of Trackmen from the Live Register, a notification was issued on 12.03.2003 calling upon the retrenched -:2:- ## W.P.(C) No.846 of 2008 casual labourers from Sl.No.636 to 1395 to report to the Divisional Office, Palghat between 17.3.2003 to 19.03.2003 with all documents such as Casual Labourer card, Date of Birth certificate etc. Since the respondent's position in the Live Register was 772, she also reported for the verification of her documents. The case of the respondent is that, she had no casual labour card or date of Birth Certificate. Therefore, she produced an affidavit as a substitute. But the same was not accepted by the petitioners. Consequently, her name was not recommended and she was informed accordingly by letter dated 20.03.2004. 3. Aggrieved by the said order, she had initially approached the CAT by filing O.A.No.525 of 2005. The CAT found that production of Casual Labourer card was not a statutory requirement. Regarding the date of birth of the respondent, it was found that an affidavit was sufficient. Since the petitioners were maintaining a Left Hand Thumb Impression Register, which contains the left hand thumb ## -:3:- ## W.P.(C) No.846 of 2008 impression of all the casual labourers, there was no prospect of an ineligible person getting appointed. The respondent had produced a Certificate issued by the Section Engineer in the place of the Casual Labour Card. The CAT found that the said documents were sufficient to support the claim of the respondent. Therefore, the Original Application was allowed and it was declared that the respondent was entitled to screening subject to her fulfilling the requirements on the basis of the details contained in the Live Casual Labour Register. In the event of her clearing the screening, it was further directed that she should be considered for absorption in accordance with relevant Rules. 4. Accordingly, the respondent was subjected to a screening. But her name was not recommended. The Screening Committee found that, though her Date of Birth was recorded as 22.08.1963, her age was recorded as 24 years at the time of her initial engagement on 21.12.1981. ## -:4:- ## W.P.(C) No.846 of 2008 On the basis of her age, her Date of Birth ought to have been 21.12.1957. Therefore, the claim of the petitioner was rejected. The respondent challenged the said action in O.A.No.111 of 2007. 5. The claim of the respondent was resisted by the petitioners contending that in the absence of any authentic record regarding the proof of her age, it was not possible to regularise her service. It was contended that, on the basis of her age seen recorded in the Casual Labour Live Register her date of birth ought to have been 21.12.1957. If the date of birth of the respondent set out in her affidavit were to be accepted, she would gain six years of service. Calculated on the basis of her date of birth given in the affidavit, she would have been only 18 years old at the time of her initial engagement. 6. In view of the serious dispute that was raised by the petitioners regarding the age of the respondent, the CAT has directed to refer the respondent to the competent ## -:5:- ## W.P.(C) No.846 of 2008 Medical Authorities of the Railways to determine her age. In the event of the age so determined tallying with the date of birth given by her in her affidavit, it is directed that she should be absorbed as a Group -D employee in Palghat Division of the Southern Railway from the date on which her Junior in the Live Register was appointed, without consequential benefits. The petitioners are aggrieved by the said direction. 7. According to Advocate James Kurian who appears for the petitioners, it was incumbent on the respondent to have produced the documents that were insisted upon by the authorities as a condition for absorption. The entire dispute is the result of omission on the part of the respondent to produce authentic documents in support of her age. In view of the above, it is contended that in the event of Medical Board ascertaining the age of the respondent she could only be absorbed prospectively. 8. Advocate T.C.Govinda Swamy on the other hand ## -:6:- ## W.P.(C) No.846 of 2008 contends that the respondent is an illiterate person whose service records are all with the Railway Authorities. She was not issued a Casual Labour Card. Instead, she was issued with only a certificate by the Section Engineer. She had produced the said document and had also produced an affidavit in support of her age which should have been accepted as sufficient for supporting her absorption into service. It is pointed out that, this is a second round of litigation that she had to resort to enforce her rights. In OA No.525 of 2005, the only contention was that she had not produced her Casual Labour Card and her certificate of Date of Birth. However, in the present Original Application a different objection is put forward to reject her claim. The above conduct according to the learned Counsel suffers from lack of bona fides. 9. It is worth noticing that as per exhibit P2 order of the CAT in O.A.No.525 of 2005, the order impugned therein was set aside. It is declared that the petitioner was entitled ## -:7:- ## W.P.(C) No.846 of 2008 to be screened subject to her fulfilling the requirements on the basis of details contained in the Live Casual Labour Register. She was therefore directed to be screened and thereafter to be considered for absorption. However in the present Original Application, a serious contest was raised regarding her actual age. It has been found in exhibit P2 that the respondent had not been issued a Casual Labour Card and that instead she was issued with a certificate by the Section Engineer. Therefore, her omission to produce a Casual Labour Card cannot be held against her to disentitle her to the regularisation to which she would have been entitled. Since the dispute in the present case is confined to her actual age, the CAT has directed the competent Medical Authorities to determine her age. We do not find any infirmity in the said direction. As already noticed above, the counsel for the petitioners takes strong exception to the direction to absorb the respondent with effect from the date on which her juniors were absorbed. It is contended that, ## -:8:- ## W.P.(C) No.846 of 2008 the said direction is uncalled for considering the fact that the non-absorption of the respondent along with her juniors was only due to her default. 10. We are not satisfied that, the above contention is tenable. In the first place, the finding that the first respondent had not been issued with a Casual Labour Card entered by the CAT in exhibit P2 order in O.A.No.525 of 2005 has become final. Therefore, the authorities ought to have accepted the Certificate produced by her, at the time of her initial consideration. As required by the Rules, she has produced an affidavit in support of her age. Her age could have been ascertained by referring her to the Medical Authorities at that time itself. We remind ourselves of the fact that the respondent is an illiterate casual labourer who cannot be expected to produce authentic documents. Therefore, the direction issued by the CAT that if her age as stated in her affidavit is found to tally with the age determined by the Medical Authorities, she should be ## -:9:- ## W.P.(C) No.846 of 2008 absorbed with effect from the date on which her juniors were absorbed. The said direction is only just and proper. In the above view of the matter, we do not find any grounds to interfere with the order of the Central Administrative Tribunal. This Original Petition is dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **P.V.ASHA JUDGE** kkj