Union of India v. C Chekkootty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 6[TH] DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 OP (CAT) NO. 35 OF 2018** **AGAINST THE ORDER IN O.A. NO. 180/00069/2017 OF THE CENTRAL** ## **ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/S:** - 1 UNION OF INDIA, REPRESENTED BY THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, CHENNAI - 3. - 2 THE SR. DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT - 678 002. BY ADV. KRISHNADAS P. NAIR, SENIOR CGC ## **RESPONDENT/S:** C CHEKKOOTTY, SENIOR TRACK MAN (RETIRED), SOUTHERN RAILWAY, PALGHAT DIVISION, NOW RESIDING AT KOYAPPAKKAKALATHIL, THENJIPALAM, MALAPPURAM, PIN - 673 636. BY ADVS. SRI.M.A.ABDUL HAKHIM SRI.JOSEPH GEORGE (KANNAMPUZHA) THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P.(CAT) No.35/2018** **-2-** ## **J U D G M E N T** ## S.V. Bhatti, J. We have heard Mr Krishnadas P Nair, learned Senior Central Government Counsel, for the petitioners and Mr M A Abdul Hakkim for the sole respondent. 2. The respondents in O A No.180/00069/2017 are the petitioners in this Original Petition. The Original Petition is filed from the order dated 25.08.2017. The respondent moved the Central Administrative Tribunal for the following reliefs: “a) To declare the 50% casual service from 21.01.1978 to 05.04.1982 and 100% of temporary status service from 01.01.1983 to 25.11.1998 of the applicant shall be reckoned for determining the pension, terminal benefits, ACP and MACP. b) To determine the pension benefits in accordance with prayer (a). **O.P.(CAT) No.35/2018** **-3-** c) To quash and set aside Annexure A2.” 3. The circumstances are considered in detail in the order under review. There are no disputed circumstances or a fact in issue between the parties. Therefore, for brevity, we refer to circumstances imminently necessary for disposing of the instant Original Petition. 3.1 The case of the applicant is that the applicant has rendered two spells of service in the respondents’ Organisation, i.e., the first period between 21.01.1978 to 05.04.1982 in a project as a Casual Labour employee, and the second, notional spell from 01.01.1983 to 25.11.1998 with temporary status. The applicant claimed pension by reckoning the above two periods for ascertaining pensionable service rendered by the applicant. The circumstances are admitted, namely that the applicant worked on a project between 1978 and 1982 and has confirmed **O.P.(CAT) No.35/2018** **-4-** temporary status in the Railways in the second spell referred to above. The prayer relates to the period included in the reckoning of the pension payable to the applicant. The Tribunal, through the impugned order, has held as follows: “4. It is admittedly the case of both sides during all this time applicant was in service. But the respondents would say that only those who have completed five years of service on 1.1.1981 are eligible for temporary status those who have completed three years and less than are eligible for temporary status from 1.1.1981. Quite obviously, the applicant was in service and had completed three years of service. But in the interregnum applicant was involved in protracted legal proceedings, and in 1982 he was removed from service. That cannot attract any prejudice in his shoulders. Apparently, the applicant have three years service as on 1.1.1981 as his appointment was in 1978. Therefore the paradigm of the interregnum status of temporary status will not visit with him as by that time he had gone ahead in service and had become a regular employee. Therefore, the entire regular service rendered by the applicant has to be taken as temporary service which when combined with service from 1978 to 1982 and the **O.P.(CAT) No.35/2018** **-5-** 50% thereon will confer upon him more than ten years of service which is required for pensionary benefits. 5. In view of the foregoing discussion this Tribunal hold that 50% of the casual service from 21.1.1978 to 5.4.1982 and 100% of temporary status service from 1.1.1983 to 25.11.1998 of the applicant shall be reckoned for determining the pension, terminal benefits, ACP and MACP. Respondents are directed to grant the pensionary benefits to the applicant in accordance with this rule." ## Hence the Original Petition. 4. The binding precedent of the Hon’ble Supreme Court in _Union of India v. Rakesh Kumar_[1] is attracted in all fours to the case on hand. A Division Bench of this Court in OP (CAT) No.160/2017 followed _Rakesh Kumar’s_ case and directed the Tribunal to pass orders appropriate to individual cases. Either way, the issue is no more _res integra_ . Before proceeding further, 1 2017 (4) SCALE 16 **O.P.(CAT) No.35/2018** **-6-** ## we excerpt the view held by the Supreme Court in _Rakesh Kumar_ case: “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 **O.P.(CAT) No.35/2018** **-7-** shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993. 56. In result, all the appeals are allowed. The impugned judgments of Delhi High Court are set aside. The writ petitions filed by the appellants are allowed, the judgments of Central Administrative Tribunal are set aside and the Original Applications filed by the respondents are disposed of in terms of what we have held in para 55 as above." 5. Adv Krishnadas P Nair argues that as per Annexure R6 Circular dated 28.11.1986, the applicant’s claim for inclusion of temporary status for arriving the pensionable service is not permissible. He places firm reliance on the following paragraph in Circular dated 28.11.1986: "4. The Ministry of Railways have considered the matter and have decided that in the case of project casual labour too, half the service rendered by them, after attaining temporary status, in terms of the instructions of 1.6.1984 and 11.9.1986 referred to in para 2 supra, will be reckoned as qualifying service for **O.P.(CAT) No.35/2018** **-8-** pension, on their eventual absorption in regular employment. The conditions attached to reckoning of such service for pensionary benefits as enjoined in the Ministry of Railways' letter of 14.10.1980 cited above, will _mutatis mutandis_ apply in the case of project casual labour also." Therefore, he argues that the applicant is not entitled to reckon the service rendered as casual workers on a project. Coming to the second limb of the direction issued by the Tribunal, i.e., to reckon the 100% of temporary status service between 01.01.1983 to 25.11.1988, it is argued that the issue is covered against the applicant by the judgment of the Supreme Court in _Rakesh Kumar_ (supra). Therefore, for both reasons, he prays for setting aside the order under the view. 6. Mr M A Abdul Hakkim, appearing for the sole respondent, argues that the applicant is not joining any issue with the Railways on whether the temporary status period **O.P.(CAT) No.35/2018** **-9-** should be included in the pensionable service or not. According to him, without including such period as well, the benefit to which the applicant is otherwise entitled, for reckoning the period spent as a casual labour employee on a project, is given due credit by the respondents, then the applicant becomes entitled to a pension. In other words, he admits that the Tribunal's latter portion of the directive is covered against the applicant by the _Rakesh Kumar_ case. Without much deliberation, we set aside the 100% temporary status service to be included in determining the pension, permanent benefits, etc., by the Tribunal. 6.1 Adverting to the first limb of the direction, the learned counsel for the applicant argues that the Railways/respondents are not justified in law in relying on Annexure R6 dated 28.11.1986 or contents in any circular issued **O.P.(CAT) No.35/2018** **-10-** by the Railways before 27.03.2017. The Supreme Court has considered the issue of eligible period for reckoning and the retiral benefits of casual labour employees who had worked in Railways in the _Rakesh Kumar_ case. According to the precedent on the point, the applicant is entitled to reckon the period spent in casual service between 21.01.1978 and 05.04.1982. The circumstance that the applicant worked on a project as a casual labour employee between 1978 and 1982 is not disputed. Hence, paragraph No.55 of point No. (ii), which is excerpted above, squarely covers the applicant’s claim for including the period worked as a casual labour employee from 1978 to 1982 for determining the pensionable service. 7. We have taken note of the limited objection raised by the respondents for including the first limb of service of the applicant as a casual labour employee in a project of the **O.P.(CAT) No.35/2018** **-11-** Railways and hold that the objection is without merit and liable to be rejected, for the Supreme Court in _Rakesh Kumar_ case has considered the issue in detail and has said what can be included and what cannot be included for determining the pensionable service of an employee under the CCS Rules. A Division Bench has also accepted the binding nature of the _Rakesh Kumar_ case to similarly situated Casual Labour employees. The case on hand does not need remand as well, for the working of the applicant in the first spell is undisputed, and the applicant wants a reckoning of that period alone in the pensionable service. 8. The grounds raised against the first direction are unsustainable and accordingly rejected. The direction of the Tribunal is to determine the appellant’s pension by reckoning two spells as noted above. We confirm the directive issued to **O.P.(CAT) No.35/2018** **-12-** include the first spell between 21.01.1978 and 05.04.1982. The second spell cannot be included. Accordingly, the said finding/direction of the Tribunal is set aside. We are of the view that the above observations/ grounds fail, and the O.P.(CAT) is, accordingly, dismissed. There is no order as to costs. **Sd/-** **S.V.BHATTI JUDGE** **Sd/-** **BASANT BALAJI JUDGE** jjj ## **O.P.(CAT) No.35/2018** ## **-13-** ## **APPENDIX OF OP (CAT) 35/2018** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF O.A 180/00069/2017 ALONG WITH ANNEXURES FILED BY APPLICANT BEFORE THE CAT/ERNAKULAM. EXHIBIT P2 TRUE COPY OF REPLY STATEMENT FILED BY RAILWAY IN O.A 180/00069/2017. - EXHIBIT P3 TRUE COPY OF ORDER DATED 25.8.2017 IN O.A 180/00069/2017 OF CAT/ERNAKULAM. - Annexure A1: TRUE COPY OF ORDER IN O.A.452/2013 OF CAT/ERNAKULAM. - Annexure A2: TRUE COPY OF ORDER DATED 5.7.2016 OF SR.DPO/PGT. - Annexure R1: TRUE COPY OF LETTER DATED 18.11.1998. - Annexure R2: TRUE COPY OF RULE 102 OF MANUAL OF PENSION RULES 1950. Annexure R3: TRUE COPY OF JUDGMENT DATED 24.3.2017 IN C.A.NO.3938/2017. - Annexure R4: TRUE COPY OF RAILWAY BOARD ORDER DATED 27.4.2017. - Annexure R5: TRUE COPY OF RAILWAY BOARD ORDER DATED 14.10.1980. Annexure R6: TRUE COPY OF RAILWAY BOARD ORDER DATED 28.11.1986.