Union of India represented by the General Manager, Southern Railway, Head Quarters Office, Park Town, Chennai-3; Chief Personnel Officer, Southern Railway, Head Quarters Office, Park Town, Chennai-3; Senior Divisional Personnel Officer, Southern Railway, Salem Division, Salem-5 v K.VASU (S/O KUppayi), Retired Senior Trackman, Southern Railway, Tirupur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **OP (CAT).No.4428 OF 2012(Z)** **AGAINST THE ORDER IN OA 292/2011 DATED 23-02-2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** - **1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN.P.O, CHENNAI-3.** - **2 THE CHIEF PERSONNEL OFFICER SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN.P.O, CHENNAI-3.** - **3 THE SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, SALEM DIVISION, SALEM-5.** **BY ADV. SRI.K.SHRI HARI RAO, SC, RAILWAYS** ## **RESPONDENT/S:** **K.VASU** **S/O.KUPPAYI, RETIRED SENIOR TRACKMAN, SOUTHERN RAILWAY, TIRUPUR, RESIDING AT "NAVANEETHAM", EAST VIDYANAGAR, AKATHETHARA POST, PALAKKAD, KERALA STATE.** **R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SRI.G.SHYAM RAJ** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 20-01-2020,** **THE COURT ON 20-01-2020 DELIVERED THE FOLLOWING:** O.P.(CAT) No.4428 of 2012 2 ## **JUDGMENT** ## **V.G.Arun, J.** The short question arising for consideration in this original petition is as to whether the casual labour service rendered by the respondent (original applicant) could be reckoned for the purpose of pension. The parties are referred as per their status in the original application. The applicant was initially engaged by the Railways as 'Casual Labourer' on 14.5.1983 and continued up to 17.8.1984. Later, the applicant was regularly appointed as 'Gangman' on 24.2.1999 and was superannuated on 31.8.2008. The period of service of the applicant as regular employee of the Railway establishment was 9 years and 6 months only, whereas the minimum period of qualifying service required to be eligible for pension is 10 years. The applicant represented before the Railways that, if O.P.(CAT) No.4428 of 2012 3 50% of his casual labour service is reckoned as qualifying service, in the manner provided under Rule 31 of the Railway Services (Pension) Rules, 1993, he would have the requisite qualifying service for pension. The representation was rejected by the Railways as per Annexure A6 on the premise that 50% of the casual labour service can be reckoned only if the casual service is followed by continuous regular service without break. Thereupon, the original application was filed seeking the following reliefs:- _“(i) Call for the records leading to the issuance of Annexure A-6 and quash the same._ _(ii) Declare that the applicant is entitled to be treated as temporary on and with effect from 14.09.1983 and declare further that the applicant is entitled to be granted monthly pension on and with effect from 1.09.2008 with all consequential benefits arising there from and direct the respondents accordingly. (iii) Award costs of and incidental to this application;”_ 2. The Railways refuted the contentions and opposed the prayers. The stand taken in Annexure A6 was sought to be O.P.(CAT) No.4428 of 2012 4 justified. It was submitted that as per the provisions in Chapter XXV of the Indian Railway Establishment Manual (IREM) 1968[th] Edition, 'casual labour' refers to labour whose employment is seasonal, intermittent, sporadic or extends over short periods. The casual labour in Railways was submitted to be of two categories, _viz_ ; open line casual labour and project casual labour. In elaboration, it was submitted that the works which are required to improve the carrying capacity of Railways are project works and those which are required for day to day running of the railway are open line works. The casual labourers engaged in open line are called open line casual labourers and those engaged in project work are called project casual labourers. The applicant, it was submitted, was engaged as a project casual labour by the construction organisation of the Railways. It was contended O.P.(CAT) No.4428 of 2012 5 that though open line casual labourers are entitled for temporary status and Central Pay Commission scales of pay on completion of 120 days of continuous service, that benefit was not extended to project casual labourers till the decision of the Apex Court in _**Inder Pal Yadav and others v. Union of India and others [(1985) 2 SCC 648]**_ . On facts it was submitted that the applicant was granted temporary status with effect from 14.5.1984 after completion of 360 days of continuous casual labour service and was later appointed on continuous basis in accordance with his seniority among the list of casual labourers maintained by the Railways in the Live Casual Labour Register published on 17.9.1996, as directed by the Central Administrative Tribunal, Ernakulam Bench, in O.A.No.1706 of 1994. It was contended that 50% of the casual labour service of an employee who had attained temporary O.P.(CAT) No.4428 of 2012 6 status could be counted as qualifying service only if the casual service is followed by regular service without break. 3. The Tribunal, relying on the decision of the Apex Court in _**L.Robert D'Souza v. the Executive Engineer, Southern Railway [(1982) 1 SCC 645]**_ and its own decision in O.A.No.449 of 2011, declared that the applicant had acquired temporary status on completion of 120 days of casual labour service, ie; w.e.f. 14.9.1983. The findings of the Tribunal at Paragraph 8 of the order is extracted hereunder:- _“8. In view of the above, it is declared that the applicant had acquired temporary service on completion of 120 days of service i.e.w.e.f.14-09-1983. As per the Casual labour card, he had served for a total period of 459 days, of which, the period served from 14.09.1983 works out to 336 days, half of which works out to 168 days. This period of 5 months and 18 days if counted as qualifying service, would make the total qualifying service as 9 years 11 months and 2 days. This is rounded off to the figure of 10 years and thus, the applicant is entitled to minimum pension as per the latest and extant rules.”_ 4. In this original petition, the Union of India and the Railway establishment are challenging the above declaration O.P.(CAT) No.4428 of 2012 7 in the impugned order of the Tribunal, raising on grounds similar to those urged in the original application. Reliance is placed on the decision of the Apex Court in _**Union of India v. Rakesh Kumar and others [(2017) 3 SCC 388]**_ , in support of the contention that entitlement for reckoning 50% of the casual labour service is subject to the employee having been regularised after casual service, without break. 5. For the purpose of considering the issue canvassed in the original petition, the applicable provisions in the IREM, the extant Circulars and the cited authorities are to be scrutinised. Rule 31 of the Railways Services (Pension) Rules, 1993 reads as follows: _“31._ _**Counting of service paid from Contingencies.** - In respect of a railway servant, in service on or after the 22[nd] day of August, 1968, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment, subject to the following conditions namely:-_ _(a) the service paid from contingencies has been_ O.P.(CAT) No.4428 of 2012 8 _in a job involving whole-time employment;_ _(b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned such as posts of malis, chowkidars and khalasis;_ _(c) the service should have been such for which payment has been made either on monthly rate basis or on daily rates computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, horne some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;_ _(d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break:_ _Provided that the weightage for past service paid from contingencies shall be limited to the period after 1[st] January, 1961 subject to the condition that authentic records of service such as pay bill, leave record or service-book is available. NOTE-(1) the provisions of this rule shall also apply to casual labour paid from contingencies._ _(2) The expression “absorption in regular employment” means absorption against a regular post.”_ ## The other relevant provisions are Rules 2301 and 2501 of the ## IREM: “ _2301 Temporary Railway Servant means a Railway Servant without a lien on a permanent post on a Railway or any administration or office under the Railway Board. The term does not include 'casual labour', 'contract' or 'part-time' employees or an 'apprentice'”_ _2501. Definition-(a) 'Casual labour' refers to labour_ O.P.(CAT) No.4428 of 2012 9 _whose employment is seasonal, intermittent, sporadic or extends over short periods. Labour of this kind is normally recruited from the nearest available source. It is not liable to transfer, and the conditions applicable to permanent and temporary staff do not apply to such labour. (b) The casual labour on railways should be employed only in the following types of cases, namely: (i) Staff paid from contingencies except those retained for more than six months continuously. Such of those persons who continue to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment. (ii) Labour on projects, irrespective of duration, except those transferred from other temporary or permanent employment. (iii) Seasonal labour who are sanctioned for specific works of less than six months' duration. If such labour is shifted from one work to another of the same type, e.g., relaying and the total continuous period of such work at any one time is more than six months' duration, they should be treated as temporary after the expiry of six months of continuous employment. For the purpose of determining the eligibility of labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers._ _Notes-_ _(1) xxx_ _(2) Once any individual acquires temporary status, after fulfilling the conditions indicated in (i) or (iii) above, he retains that status so long as he is in continuous employment on the railways. In other words, even if he is transferred by the administration to work of a different nature he does not lose his temporary status.”_ _(3) xxx_ _(4) Casual labour should not be deliberately discharged with a_ O.P.(CAT) No.4428 of 2012 10 _view to causing an artificial break in their service and thus prevent their attaining the temporary status.”_ 6. The question as to whether a 'Casual Labour' as defined under Rule 2501 of IREM would fall within the definition of 'Temporary Railway Servant' under Rule 2301 _**Robert D'souza**_ was the issue considered by the Apex Court in (supra). In that case, the appellant L.Robert D'souza had joined the service of the Southern Railway as Gangman (casual labour) on 1.7.1948. In course of time, he was transferred to various places and while so, on 8.10.1994, he was informed that his services were deemed to have been terminated from 18.9.1994, from which date, he was said to have absented from duty. According to the appellant, up to the date of unauthorised and illegal termination of his service, he had rendered continuous service for a period of 26 years and yet the Railway Administration wrongfully denied him the status O.P.(CAT) No.4428 of 2012 11 of a temporary and/or regular workman and had treated him a daily rated casual labourer. The issue was taken up by the appellant and his union before the Ministry and by letter dated 23.04.1974, it was informed that the Ministry of Railways had advised the Railway administration to treat the appellant to have been on duty and to pay his wages accordingly. Apprehending that, in order to settle scores, the Railway Administration would terminate his services, so as to deny full retirement benefits, Robert D'souza along with similarly situated casual labourers approached the High Court contending that they should be treated as Temporary Railway Servants and their services should not be terminated in the manner in which the service of Robert D'souza was terminated earlier. The writ petition was dismissed and the Division Bench, before which the matter came up for O.P.(CAT) No.4428 of 2012 12 consideration, referred the matter to the Full Bench to decide on the question as to whether the termination of the service of Robert D'souza on the earlier occasion would constitute retrenchment within the meaning of Section 25(f) of the Industrial Disputes Act, 1947 and if so, whether the termination is invalid. In the meanwhile, Robert D'souza's service was terminated for having absented from duty in connection with trade union activities. The Full bench thereafter answered the point referred to it against Robert D'souza holding that there is no retrenchment as contended and dismissed the petition. Thereupon, the matter was taken to the Supreme Court. The Honourable Apex Court set aside the findings of the Full Bench on retrenchment and held that striking off the name of a workman from the rolls without anything more constitutes retrenchment within the meaning O.P.(CAT) No.4428 of 2012 13 of the expression 'retrenchment' in Section 2(oo). Having held so, the Apex Court proceeded to consider the question as to whether the appellant would acquire the status of a temporary worker on the basis of his long stint of service. The Apex Court considered the definition of 'Temporary Railway Servant' in Rule 2301 and held that the intendment of Rule 2501 (b)(i) and (iii) and the Note below Rule 2505 is that casual labourer who has rendered six months continuous service would be placed in the category of temporary railway servant unless he is employed on work charge project. Deprecating the practice of shunting out ( _sic; terminating_ ) casual labourers at the will and pleasure of the Railway establishment, the Apex Court at Paragraph 22 of the judgment held as follows:- _“22.We would be guilty of turning a blind eye to a situation apart from being highly unethical, wholly contrary to constitutional philosophy of socio economic justice if we fail to_ O.P.(CAT) No.4428 of 2012 14 _point out that R.2501 which permits a man serving for 10, 20, 30 years at a stretch without break being treated as daily rated servant, is thoroughly opposed to the notions of socio economic justice and it is high time that the Railway administration brings this part of the provision of the Manual, antiquarian and antiquarian, in conformity with the Directive Principles of State Policy as enunciated in Part IV of the Constitution. It may be necessary for a big employer like the railway to employ daily rated workmen but even here it is made distinctly clear that in case of casual labour, the daily wage is fixed by dividing monthly minimum wage by 26 so as to provide a paid holiday. May be, for seasonal employment, or for other intermittent work daily rated workmen may have to be employed. It may as well be that no projects work charged staff may have to be employed because on the completion of the projects the staff may become surplus. That was at a time when planning and projects were foreign to the Indian economy. Today, Railways have perspective plans spreading over decades. If one project is complete another has to be taken over. Railway administration has miles to go and promises to keep and this because clear from the fact that the appellant, a daily rated workman, continued to render continuous service for twenty years which would imply that there was work for a daily rated workman everyday for twenty years at a stretch without break and yet his status did not improve and continued to be treated as daily rated casual labour whose service can be terminated at the whim and fancy of the local satraps. It is high time that these utterly unfair provisions wholly denying socio economic justice are properly modified and brought in conformity with the modern concept of justice and fair play to the lowest and the lowliest in Railway administration.”_ 7. The jurisprudence with respect to the rights of project casual labourers engaged by the Railways got further O.P.(CAT) No.4428 of 2012 15 impetus with the decision of the Honourable Supreme Court in _**Inder Pal Yadav.**_ Therein, the Apex Court took cudgels against the manner in which the Railways was still continuing with the rule of hire and fire with respect to project casual labourers. A flood of litigations on the subject had reached the Supreme Court, during the pendency of which the Railway Ministry framed a scheme and placed it for consideration before the court. The relevant portion of the scheme reads as under:- _“5.1 As a result of such deliberation, the Ministry of Railways have now decided in principle that casual labour employed one project (also known as “Project casual labour”) may be treated as temporary (temporary status on completion of 360 days of continuous employment. The Ministry have decided further as under:-_ _(a) Those orders will cover:(i) Casual labour on projects who were in service as on 1.1.1984; and_ _(ii) Casual labour on projects, who though not in service on 1.1.1984, had been in service on Railways earlier and had already completed the above prescribed period (360 days) of continuous employment or have since completed or will complete the said prescribed period of continuous employment on re-engagement after 1.1.1984._ O.P.(CAT) No.4428 of 2012 16 _(b) The decision should be implemented in a phased manner according to the schedule.”_ The Honourable Supreme Court accepted the Scheme with a modification to Part 5.1(a)(i) by altering the date 1.1.1984 to 1.1.1981. Direction was given to implement the scheme by recasting the list, consistent with the modification. 8. It was in consonance with the direction of the Honourable Supreme Court that Annexure R1 Circular dated 11.09.1996 was issued and the petitioner included in the Live Register of Project Casual Labourer, followed by his regular appointment, albeit, 15 years after his casual service had come to an end. 9. The question as to whether the casual service rendered by a project casual labourer after acquiring temporary status is no longer _res integra_ in view of the decision of the Honourable Supreme Court in _**Rakesh Kumar**_ 's O.P.(CAT) No.4428 of 2012 17 case. In _**Rakesh Kumar**_ , the Railways had challenged the judgment of the Delhi High Court holding that 50% of the period spent by the casual employee after acquiring temporary status and eventual regularisation could be reckoned for the purposes of pension and other terminal benefits. The Apex Court referred to Paragraph 20 of Master Circular No.54, Paragraph 2005 of IREM and Rule 31 of the Railway Services Pension Rules, 1993, as also the decisions in _**General Manager, South Central Railway, Secunderabad and another v. Shaik Abdul Khadar [2004 (1) SLR 2014]**_ and _**General Manager, North West Railway and others v. Chanda Devi [2008 (2) SCC 108]**_ and allowed the appeal. Paragraph 20 of Master Circular No.54 reads as follows:- _“20._ _**Counting of the period of service of Casual Labour for pensionary benefits** : - Half of the period of service of casual labour (other than casual labour employed on Projects) after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as_ O.P.(CAT) No.4428 of 2012 18 _regular railway employee, counts for pensionary benefits. With effect from 1-1-1981, the benefit has also been extended to Project Casual Labour._ _Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or in another service or post.”_ ## Rule 2005 of the IREM is as follows:- _“2005. Entitlements and privileges admissible to Casual Labour who are treated as temporary (i.e. given temporary status) after the completion of 120 day or 360 days of continuous employment (as the case may be). (a) Casual labour treated as temporary are entitled to the rights and benefits admissible to temporary railway servants as laid down in Chapter XXIII of this Manual. The rights and privileges admissible to such labour also include the benefit of D & A rules. However, their service prior to absorption in temporary/permanent/regular cadre after the required selection/ screening will not count for the purpose of seniority vis-a-vis other regular/temporary employees. This is however, subject to the provisions that if the seniority of certain individual employees has already been determined in any other manner, either in pursuance of judicial decisions of otherwise, the seniority so determined shall not be altered._ _Casual labour including Project casual labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits. This benefit will be admissible only after their absorption in regular employment. Such casual labour, who have attained temporary status, will also be entitled to carry forward the leave at their credit to new post on absorption in regular service. Daily rated casual labour will not be entitled to these benefits._ _…...”_ O.P.(CAT) No.4428 of 2012 19 10. After considering the decisions and the provisions, the Apex Court proceeded to hold that the grant of temporary status of casual labourer is not akin to appointment against a post and such contingency is expressly covered by Rule 31 which provides for taking into account half the service paid from contingencies for calculating pensionary benefits on absorption in regular employment, subject to the conditions enumerated therein. Based on the said finding, the impugned judgement of the Delhi High Court, which held that the entire service of casual labour after obtaining temporary status is entitled to be reckoned on subsequent regularisation, was set aside. However, the Apex Court observed that the period of casual labour service, prior to grant of temporary status, to the extent of 50%, has to be counted for the purpose of pensionary benefits by virtue of Note 1 of Rule 31. Reference O.P.(CAT) No.4428 of 2012 20 was also made to Rule 107 of the Railway Services (Pension) Rules, 1993, providing for dispensing with or relaxing the requirement of any rule, the operation of which causes hardship in any particular case. In conclusion, the Apex Court held 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% of 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 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.”_ 10. In view of the decision in _**Rakesh Kumar** ,_ 50% of O.P.(CAT) No.4428 of 2012 21 the casual labour service rendered by the applicant, after acquiring temporary status is liable to be reckoned for the purpose of pension. As rightly held by the Tribunal, reckoned in such manner, the total service rendered by the applicant would be 9 years 11 months and 2 days, which is bound to be rounded off to 10 years, thus entitling the applicant for pension. 11. We also take note of the fact that, while admitting this original petition and granting an interim order of stay, this Court had noted the submission of the learned Standing Counsel for the Railways that O.A.No.449 of 2011 mentioned in the impugned order was under challenge in O.P.(CAT) No.119 of 2014 filed by the Railways. It is not in dispute that O.P.(CAT) No.119 of 2014 was dismissed as withdrawn by this Court on 6.1.2020, based on the submission of the learned O.P.(CAT) No.4428 of 2012 22 Standing Counsel that the orders of the Tribunal which were under challenge in that original petition had been complied with and that the original petition need not be prosecuted further. In an identical matter the Railways cannot take a different stance. For the reasons aforementioned, the original petition is dismissed. No order as to costs. **Sd/K. VINOD CHANDRAN** sd/- **V.G.ARUN JUDGE** **JUDGE** Scl/ 20.01.2020 O.P.(CAT) No.4428 of 2012 23 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **PHOTOCOPY OF THE PHOTOCOPY OF THE TRUE COPY OF THE O.A.292/2011 ON THE FILES OF THE CAT (ERNAKULAM BENCH).** **ANNEXURE A6 TRUE COPY OF THE LETTER NO:SA/P.5769/NR/ONR/10 DATED 16.8.2010 ISSUED BY THE 3RD RESPONDENT.** **ANNEXURE A1 TRUE COPY OF THE REPRESENTATION DATED 14.7.2009 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT.** **ANNEXURE A2 TRUE COPY OF THE REPRESENTATION DATED 28.7.2009 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT.** - **ANNEXURE A3 TRUE COPY OF THE REPRESENTATION DATED 5.10.2009 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT.** - **ANNEXURE A4 TRUE COPY OF THE LETTER NO:SA/PG/RTI/2008-09 DATED 19.8.2009 ISSUED BY THE BY THE 3RD RESPONDENT.** - **ANNEXURE A5 PHOTOCOPY OF THE SERVICE CARD OF THE APPLICANT (ALONG WITH TYPED COPY).** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A.292/2011 ON THE FILES OF THE CAT (ERNAKULAM BENCH).** - **ANNEXURE R1** **TRUE COPY OF THE LETTER NO.E(NG)II 84/CL/41 DATED 11.9.1986** O.P.(CAT) No.4428 of 2012 24 **ANNEXURE R2 TRUE COPY OF THE LETTER NO.J/P 407/IX/CLR/LR/RE-ENGAGEMENT DATED 30.11.1998. ANNEXURE R3 PHOTOSTAT COPY OF THE RELEVANT PAGES CONTAINING RULE 31 OF THE RAILWAY SERVICES (PENSION) RULES 1993. ANNEXURE A4 PHOTOSTAT COPY OF THE RELEVANT PAGES CONTAINING RULE 69(1) & 69(3) OF THE RAILWAY SERVICES (PENSION) RULES 1993. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 23.2.2012 IN O.A.292/2011 OF THE CAT (ERNAKULAM BENCH)**