Union of India represented by the Secretary to Government of India, Ministry of Railways v. A.N. Viswambaran, Cletus Rodrigues, A.V. Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930** **WP(C).No. 16336 of 2005(S)** **------------------------------------OA.352/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** **.............................................** ## **PETITIONERS:** - **-------------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF RAILWAYS, RAIL BHAVAN, NEW DELHI-1.** ## **2. GENERAL MANAGER,** **SOUTHERN RAILWAY, CHENNAI-3.** ## **3. DIVISIONAL RAILWAY MANAGER,** **SOUTHERN RAILWAY, THIRUVANANTHAPURAM-14.** **BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS** **RESPONDENTS:** **------------------------** **1. A.N.VISWAMBARAN, RETIRED STATION MASTER CHTS, SOUTHERN RAILWAY, RESIDING AT ANNAMKULANGARA HOUSE, SDPY, BHS ROAD, PALLURUTHY, P.O.KOCHI.** ## **2. CLETUS RODRIGUES,** - **RETIRED CHIEF TRAIN TICKET INSPECTOR GR.I, SOUTHERN RAILWAY, ERNAKULAM, RESIDING AT "SERENO", X/1344, AMARAVATHY, KOCHI-682 001.** **3. A.V.JOSEPH, RETIRED WELDER (ENGINEERING) SOUTHERN RAILWAY, ERNAKULAM, RESIDING AT ADICHIYIL HOUSE, NARAYANAN ASAN CROSS ROAD, VYTTILA, KOCHI-19.** - **BY ADV. SRI.K.A.ABRAHAM SRI.BIJU MARTIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO: 16336/2005 S** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1. COPY OF THE OA NO. 352/2004.** **EXT.P2. COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT IN OA NO. 352/2004.** **EXT.P3. COPY OF THE ORDER DT. 15TH MARCH 2005 IN OA NO. 352/2004.** **EXT.P4. COPY OF THE ORDER DT. 4TH JANUARY, 2005 IN OA NO. 488/2003.** **RESPONDENT'S EXHIBITS NIL.** _True copy_ _tga_ ## **C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** **W.P.(C) No.16336 of 2005-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of March, 2008.** ## **JUDGMENT** ## T.R.Ramachandran Nair, J. The respondents before the Central Administrative Tribunal are the petitioners herein. As per the order impugned, the Tribunal directed the petitioners to grant retirement benefits to employees who retired on 31.12.1995, as though they have retired only on 1.1.1996. Ext.P3 is the order passed by the Tribunal. 2. The applicants retired from the service of the Railways on 31.12.1995. They were paid DCRG reckoning their basic pay plus 97% of the basic pay treated as Dearness Pay as applicable as on 31.12.1995. Their grievance is that they were not given the pensionary benefits including DCRG as applicable to pensioners as on 1.1.1996 treating 148% of the basic pay as Dearness Allowance on the basis of the Railway Board's letter dated 5.11.1999. The Tribunal followed the Division Bench judgment of this court in **Union of India v. K.J. George** (2003 (2) KLJ 978) to hold that they are entitled to get pensionary benefits at the rate admissible as on 1.1.1996 in terms of the relevant orders. WPC 16336/2005 -2- 3. Some more facts are necessary to appreciate the contentions of the parties. Annexure I in the O.A. is an order dated 5.11.1997 of the Railway Board passed in purported implementation of the Government decision on the recommendation of the Central Pay Commission. As per the order, the provisions regulating pension/commutation of pension have been revised. Para 3 provides for the date of effect and clause 3.1 is important. The same is extracted below: “3.1 The revised provisions as per these orders shall apply to all Railway servants who retire/die in harness on or after 1.1.1996. Separate orders are being issued in respect of employees who retired/died before 1.1.1996.” Clause 4 relates to emoluments and clause 4.1 is important which is extracted below: “The term 'Emoluments' for purposes of calculating the various pensionary benefits other than Retirement/Death Gratuity shall mean basic pay as defined in Rule 1303(1)/-II(FR9(21)(a)(i) which the Railway servant was receiving immediately before his retirement or on the date of his death.” Clause 10 contains special provisions for those retiring between 1.1.1996 and 31.12.1997 and the provisions for regulating the pension and DCRG for them have been laid down therein. 4. Learned counsel for the respondents strongly placed reliance upon the Division Bench decision of this court in **K.J. George's case** (supra) which was relied upon by the Tribunal. 5. Therefore, the question is whether the above provisions will apply WPC 16336/2005 -3- to persons who have retired from service on 31.12.1995. We find, on a reading of para 3.1 of Annexure I itself that the Railway Board contemplated separate orders in respect of employees who retire/die in harness on or after 1.1.1996. Para 4.1 shows that the emoluments for purposes of calculating the various pensionary benefits other than retirement/death gratuity shall mean basic pay as defined in Rule 1303 (1)/-II(FR9(21)(a)(i) which the Railway servant was receiving immediately before his retirement or on the date of his death. 6. A Division Bench of this court in 2003 (2) KLJ 978 considered the case of two persons who retired on 31.12.1995. They were paid pension from 1.1.1996. Based on the recommendation of the Vth Pay Commission, the Government of India issued two orders on27.10.1997. The orders provided benefit only to those who had retired on 1.1.1996. The Division Bench considered the terms of Circular dated 27.10.1997 which provided that the order shall apply “to all pensioners/family pensioners who were drawing pension/family pension on 1.1.1996 under the Central Civil Services (Pension) Rules, 1972.” The definition of existing pensioner and existing pension were also considered and on an interpretation of the above provisions, it was held that as on 1.1.1996, they had ceased to be in service and acquire the status of pensioners and their claim for pension had to be determined at the rate prevalent on that date. 7. As noticed above, Annexure I Railway Board's letter dated WPC 16336/2005 -4- 5.11.1997 clearly stated in para 3.1 that it applies only to persons who retired/died in harness on or after 1.1.1996 and separate orders are being issued in respect of employees who retired/died before 1.1.1996. It cannot be disputed that the respondents had retired on 31.12.1995, i.e. before 1.1.1996. Therefore, going by para 3.1 they will be governed by separate orders to be issued and Annexure I applies only to Railway servants who retired/died in harness on or after 1.1.1996. In the light of the above clear provisions of Annexure I, we find that there is no justification in the arguments raised by the respondents before the Tribunal that Annexure I will apply to them also. Consequent on their retirement on 31.12.1995, the employee-employer relation has ceased. By no stretch of imagination it can be held that they would be deemed to have retired on 1.1.1996, to claim the benefit of revised benefits. In fact, the Tribunal even though placed reliance upon the decision in K.J. George's case (2003 (2) KLJ 978, according to us, the reliance placed on the said decision is not correct as the facts are clearly different. In fact, the said decision stands reversed by the Apex Court in Civil Appeal Nos.2908/2005 and 789/2005 by the Hon'ble Supreme Court. The relevant portion of the judgment is extracted below: “We are unable to countenance with the decision of the Tribunal and the High Court. As already noticed that they were retired with effect from 16.12.1995 and 3.12.1995 respectively but because of the provision of FR 56, they were allowed to retire till the last date of the month, the grace period of which was WPC 16336/2005 -5- granted to them for the purpose of pay and allowances only. Legally, they were retired on 16.12.1995 and 3.12.1995 respectively and, therefore, by no stretch of imagination it can be held that their pensionary benefits can be reckoned from 1.1.1996. The relationship of the employer and employee terminates in the afternoon of 16.12.1995 and 3.12.1995 respectively.” Therefore, the order passed by the Tribunal cannot be sustained at all. 8. Recently, the Apex Court analysed a similar issue in respect of person who retired on 30.6.2003 and claimed the session benefits of the next session commencing on 1.7.2003, in the decision reported in **Achhaibar Maurya v. State of U.P. And others** {(2008) 2 SCC 639}. While analysing the entitlement of the said appellants, their Lordships held that “a cut-off date fixed by a statute may not be struck down unless it is held to be arbitrary. What would, therefore, be an employee's last working day would depend upon the wordings of the Rules. It may seem unfortunate as some people may miss the extended period of service by a day, but therefor a valid provision may not be held to be invalid on the touchstone of Article 14 or 16 of the Constitution of India. A person retires automatically on the day when he completes the age of superannuation. A person attains a specified age on the day next before the anniversary of his birth day or in other words, on the day preceding that anniversary.” It was held therein that the appellant therein was not entitled to the benefit claimed. We are of the view that the same principle as regards the retirement, will apply to the facts of this case also. Therefore, going by the WPC 16336/2005 -6- date of retirement, he will be a person who retired on 31.12.1995 and he cannot be termed as a person who retired on or after 1.1.1996 to come within the beneficial provisions of Annexure I, as para 3.1 does not apply to such persons. In that view of the matter, we find that the Tribunal acted erroneously in straight away applying the decision in 2003 (2) KLJ 978 and for allowing the benefits to the applicants. Therefore, the writ petition is allowed setting aside the order passed by the Tribunal and dismissing the O.A. **(C.N. Ramachandran Nair, Judge.)** **(T.R. Ramachandran Nair, Judge.)** **kav/** WPC 16336/2005 -7- C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - I.T. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 17[th] March, 2008.