Chella Bai.T. vs Union Of India & Anr.

The applicant was engaged as a Casual Labourer under the respondents from 16.11.1978 and retrenched on 15.07.1981. She was re-engaged on casual basis and thereafter regularized with effect from 08.03.1999 as a Track Maintainer. She retired on 31.05.2018. According to the applicant, her qualifying service was reckoned as 19 years. However, the period of causal service from 1978 to 1981 was not reckoned for any purpose. Raising this grievance Annexure A-3 representation was submitted. Since it was not favourably responded, the O.A was filed seeking to declare that she was entitled to reckon 50% of casual service from 16.11.1978 prior to her regularization as qualifying service and to direct the respondents to grant her all consequential benefits, to revise the pensionary benefits, to issue post retirement complementary pass and also to consider the grant of financial upgradation under the MACP Scheme.

Respondents filed the detailed reply statement.

Heard both sides and examined the records.

The essential facts are not in dispute. The only question that arises is whether the casual labour period covering 16.11.1978 to 15.07.1981 is liable to be reckoned for considering her qualifying service for benefits. The stand of the respondents was that by virtue of Para 1501 of IREM, a temporary Railway service has been defined. Para 2005 of IREM deals with casual labour. Rule 20 and 24 of Railway Service (Pension) Rules, 1993 prescribes the commencement of qualifying service as from the date when he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Rule 14 of the said Rules provided that period of casual market or daily rates employment cannot be reckoned for constituting service for pensionary benefits. It was hence contended that none of the Rules applicable to the applicant enabled her to reckon period of her casual service for the purpose of reckoning qualifying service.

It was further contended that the applicant is seeking regularization of period prior to 1981. The OA was filed only in 2020. Hence, it was palpably barred by limitation. It was also contended that the applicant was employed as casual labourer in the construction organisation and was not granted the temporary status. It was also contended that the decisions relied on by the applicant to claim benefit related to employees who were open line casual labourers who were granted temporary status followed by absorption without any break in service. It was further contended that in the case at hand, there was a break in service.

It is pertinent to note that though the applicant is seeking reckoning of period prior to 1981 and the OA is filed only in 2020, the contention that it was palpably barred by limitation does not appear to be sustainable. Only when the period of casual labourer service is not reckoned for the purpose of computing benefit after retirement, the cause of action will arise. In fact, it arose only after the retirement of the applicant on 31.05.2018. It is also seen that thereafter the Annexure A-3 representation was submitted. Hence the contention of the respondents that the application was barred by limitation is not sustainable.

It is true that the applicant was engaged in a construction organisation and she was not granted temporary status. However, this issue was the subject matter of dispute before the Hon'ble Supreme Court in Union of India & Ors. vs. Rakesh Kumar & Ors., Civil Appeal No.3938/2017. The entire issue was considered with reference to all the legal precedents and the law was settled by the Hon'ble Supreme Court holding that notwithstanding the nature of employment, 50% of the period covered before granting temporary status is also liable to be reckoned for pensionary benefits. After an elaborate discussion on entire case laws on the subject, the Hon'ble Supreme Court held as follows :

The above decision exhaustively covers all the issues involved and none of the objections with reference to the Rules can survive. Having considered this, the applicant is entitled for reckon 50% of her casual labourer service period from 16.11.1978 to 15.07.1981 and benefits accrued accordingly liable to be granted to her. It was contended at the time of hearing that there will not be any substantial change in the pension. It seems that the only benefit that the applicant may be entitled will be granting of the complementary pass.

Having considered the entire facts, I am inclined to allow the O.A. The O.A is allowed. The respondents are directed to reckon 50% of the period from 16.11.1978 to 15.07.1981 for the purpose of fixing the qualifying service. Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this order. The applicant shall be granted the benefits due to her within the above period. There shall be no order as to costs.