Union of India and Others v. K.M. Nazirudeen

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937 OP (CAT).No. 57 of 2016 (Z) ---------------------------- AGAINST THE ORDER/JUDGMENT IN OA 960/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 22-07-2015 PETITIONER(S)/PETITIONERS/RESPONDENTS IN THE O.A.: ------------------------------------------------ 1. UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600003. 2. CHIEF ENGINEER (CONSTRUCTION) SOUTHERN RAILWAY, EGMORE, CHENNA-600008. 3. SENIOR DIVISIONAL PERSONNEL OFFICER SOTHERN RAILWAY, TRIVANDRUM DIVISION THIRUVANANTHAPURAM-695014. 4. SENIOR DIVISIONAL FINANCE MANAGER SOUTHERN RAILWAY, TRIVANDRUM DIVISION THIRUVANANTHAPURAM-695014. BY ADV. SRI.TOJAN J.VATHIKULAM,SC,RAILWAYS RESPONDENT(S)/RESPONDENT/APPLICANT IN THE O.A.: ------------------------------------------ K.M NAZIRUDEEN S/O. MOHAMMED MOULAVI (RETIRED SENIOR TRACKMAN/TRIVANDRUM DIVISION) RESIDING AT SALAMATH MANZIL, VADUTHALA JETTY AROOKUTTY P.O., ALLEPPEY DISTRICT, PIN-688535. THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 57 of 2016 (Z) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1- TRUE COPY OF THE O.A.NO. 960/2012 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P2- TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A.NO. 960/2012 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P3- TRUE COPY OF THE ORDER DATED 22ND JULY 2015 IN O.A.NO. 960/2012 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P4- TRUE COPY OF THE ORDER DATED 22ND DAY OF NOVEMBER, 2007 IN O.A.NO.280/2006 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENT(S)' EXHIBITS nil -------------------------- jj /TRUE COPY/ P.S.TO JUDGE K. SURENDRA MOHAN & P.V.ASHA, JJ. ------------------------------O.P(CAT) NO.57 OF 2016 ---------------------------------Dated this the 17[th] February, 2016. ## JUDGMENT Surendra Mohan, J. The respondents in O.A.960/2012 of the Central Administrative Tribunal ('CAT' for short) challenge Ext.P3 order allowing the claim of the respondent who was the applicant therein. The respondent is a retired employee of the Indian Railways. He had joined service on 20.3.1974 as a Casual Labourer in the Construction Organization of the Southern Railway. Initially his services were utilised for the work of the Ernakulam-Trivandrum line. Later on he was transferred to the Open Line Organization in 1978 and was posted as a gang man. He was granted temporary status with effect from 23.10.1978. With the introduction of MACP, the respondent became entitled to the benefits thereof. His claim OP(CAT) 57/2016 2 before the CAT was that, he was entitled to be granted his III MACP taking into account his entire service commencing from 20.3.1974. He had been granted the first and second MACPs taking into account his service from 20.3.1974 to 5.9.1977. Therefore he had invoked the jurisdiction of the CAT for the enforcement of the claim. 2. The petitioners herein disputed the claim of the respondent. According to them the respondent was a casual labourer from 1974 to 1977. It was pointed out that even according to his representation Annexure A1 that forms part of Ext.P1, he was transferred to open line only during 1978. In view of the above, it was contended that his service prior to 30.10.1978 was not liable to be counted. 3. The CAT considered the rival contentions and has allowed the O.A filed by the respondent finding that he was entitled to the benefit of the III MACP also. The petitioners are aggrieved by the said order. 4. According to Adv.Tojan J.Vathikulam the CAT erred OP(CAT) 57/2016 3 in not dismissing the O.A finding that the same was barred by limitation. According to the learned counsel, the applicant had been granted temporary status only in 1978. He had not challenged the said proceedings at that time. The effect of the order of the CAT would be to change the date of the order granting temporary status to the respondent. He had filed the O.A only after he had retired from service. He was fully aware of the fact that he was not entitled to count his service from 1974 to 1977 for any purpose, in view of the fact that he was a project casual labourer. Even according to Annexure A4, his claim was that his appointment date should be shown as 23.10.1978. According to the learned counsel therefore Ext.P3 order is unsustainable and liable to be set aside. 5. Heard. This original petition comes up before us for admission. The learned counsel has drawn our attention to Annexure A4 to point out that even according to the respondent that he was initially engaged on 20.3.1974 and was transferred to the open line only in the year 1978. Only OP(CAT) 57/2016 4 open line casual labourers are entitled to count their service for the purpose of grant of temporary status. It was for the said reason that the respondent was given temporary status only from the year 1978 after he had put in the requisite period of service. The said proceedings having become final cannot be reopened at this length of time. 6. A perusal of Ext.P3 order shows that the above aspect has been considered by the CAT. The CAT has found that, absolutely no material or evidence has been adduced by the petitioners to show that the respondent was a project casual labourer. What has been stated is that, the respondent was engaged in the construction organization of the Southern Railway. It has been found that the construction organization is a part of the organization of the Indian Railways. Reliance is placed on the decision in L.Robert D'Souza v. Executive Engineer ,Southern Railway & Anr. [1982 SCC (L&S)124]. We find no infirmity in the said finding. It has further been held that a similar order passed by the CAT in O.A.606/2005 was OP(CAT) 57/2016 5 confirmed by this Court by its judgment in WPC 18337/2007. In short, the contention that the respondent was a project casual labourer has been rejected for the reason that there was no material to show that he had been engaged as a project casual labourer. No material has been brought to our notice to support the said contention even in this original petition. It is further worth noticing that the CAT has held that the respondent would have acquired temporary status on completion of 120 days from 20.3.1974 and therefore his services from 20.3.1974 should also be counted for reckoning the total period of service put in by him. Therefore, he had on the above basis become entitled to get the benefit of 30 years of qualifying service as on 31.5.2011 as per the MACP scheme. We find that, similar relief granted in other applications by the CAT have been confirmed by this Court. The respondent has already retired and the only benefit that would accrue to him by virtue of his service is that he would be entitled to only monetary benefits. We are not satisfied OP(CAT) 57/2016 6 that any interference with the order of the CAT is called for in the above circumstances. For the above reasons this original petition is dismissed. The time for compliance with the direction of the CAT in Ext.P3 is extended by a period of six weeks from today. Sd/K. SURENDRA MOHAN Judge Sd/P.V.ASHA Judge jj /True copy/ OP(CAT) 57/2016 7