AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
This original application has been filed under section 19 of Administrative Tribunals Act 1985 seeking direction to the respondents to determine the services performed by the applicant having acquired temporary status under the respondents as qualifying service for the purpose of pension, gratuity and other retirement benefits and further to revise aforesaid retiral benefits and to release the arrears that arose on account thereof and also to make payment of pension at the enhanced rate regularly.
The facts of the case, in brief, are that the applicant was initially engaged as muster roll casual labour on 19.10.1979 under the T.I., Agra Cantt and worked upto 18.01.1980 where he acquired temporary status. Thereafter, he was engaged as M.R.A.P.M on 13.03.1985 and continued on the aforesaid Group „D‟ post upto 20.05.1986. His service was terminated w.e.f. 21.05.1986 by the respondent no. 2 and thus Industrial Dispute was initiated which was referred by the Central Government, Ministry of Law vide its Notification No. L-41011/40/89/IR (D.C) dated 28.11.1989 for adjudication to the Central Government Industrial Tribunal cum Labour Court, Kanpur and the same was registered as Industrial Dispute No. 297/1989 and the same was decided vide Award dated 05.10.1992 holding the action of the management of the Railway, Jhansi in terminating the services of the applicant w.e.f. 21.05.1986 neither legal nor justified. Thereafter, the applicant was reinstated in service on 27.02.1993 on regular basis as permanent Group „D‟ employee. The applicant was retired from service on attaining the age of superannuation on 31.10.2021 and the last pay received by him was Rs. 32,000/- in level 3.
The contention of the applicant is that after retirement, his total qualifying service was determined by the respondent no. 2 as 28 years 8 months 5 days but the terminal benefits was paid taking into account net qualifying service as 24.5 years reducing 2 years, 10 months 20 days as Sub/CPC and based on this calculation, the respondents released his retirement benefits and started to pay pension w.e.f. 01.11.2021. The claim of the applicant is that his service earlier than his reinstatement by the Industrial Tribunal has not been considered as well as the computation of 24.05 years of qualifying service out of his total service of 28 years 8 months 5 days is also not reasonably explained by the respondents. Hence, the applicant seeks the relief sought and prays that the OA may be allowed.
Upon notice, the respondents have filed counter affidavit wherein they say that the applicant was initially appointed as Muster Roll Casual Worker w.e.f. 27.02.1993 and he was given permanent status and posted on 28.11.1996. After attaining the age of superannuation, he was retired on 31.10.2021 and at the point of time, his total service was 24.5 years. The counsel for the respondents contended that at the time of retirement, the service rendered by the applicant as muster roll casual labour and regular service was calculated and also after deduction of absence period, the qualifying service was finalized for settlement of final dues. He further contended that from 27.02.1993 to 28.11.1996, the applicant worked for 3 years 9 months and 1 day as muster roll casual labour and after calculating the half of the aforesaid service as muster roll casual labour, 1 year 10 month and 16 days were counted for the purpose of retiral benefits and the regular appointment from 28.11.1996 to the date of his retirement i.e. 31.10.2021 was 24 years 11 month 3 days. Thus, 28 years 8 months 5 days of total service of the applicant was calculated and after deducting absence period of 2 years 1 month and 1 day, the total qualifying service of the applicant was 24.5 years hence, there is no illegality in the action of the respondents and the OA may be dismissed.
Rejoinder Affidavit has been filed by the applicant where he reiterated his stand in the OA and simply denied the contents of counter affidavit by saying that the services before the period of his reinstatement has not been taken into account and the calculation of the eligibility period has not been sufficiently explained, hence his OA may be allowed and the relief claimed may be granted to him.
The case came up for final hearing on 30.01.2024. Shri R.K. Shukla, learned counsel for the applicant and Shri Shivaji Singh, learned counsel for the respondents were present and both were heard. I have carefully gone through the entire record, and considered the rival contentions.
It is not disputed by both the parties that after the order of Industrial Tribunal, the applicant was reinstated on 27.02.1993 in service but the respondents claim that this was the date of his start of temporary status whereas the applicant claims that he got temporary status much earlier, as mentioned in para 2 of the Award dated 05.10.2010 of the Industrial Tribunal in Industrial Dispute No. 297/1989, which reads following: -
“2.The case of the Union is that Shri Mahendra Kumar, Umesh Singh and Ganga Prasad had been working there the Central Railway, Agra Cantt since 3.9.1986, 20.10.1980 & 1979 respectively. While working as such, they had acquired temporary status. Where their services were terminated on 24.01.1987, 23.03.1986 and 21.05.1986 respectively without complying with the provisions of section 25F of the I.D. Act and in violation of the provisions of section 256 of the I.D. Act, mala-fide, Union has therefore, prayed for their reinstatement with full back wages.”
Further, in the aforesaid Award, the averment of the Union cannot be considered to be true facts of the case and only thing that emerges in the order is that termination of Ganga Prasad (the applicant) w.e.f. 21.05.1985 was neither legal nor justified and consequently, all the workmen were ordered to be reinstated in service but without any back wages and the management was given liberty to conduct proper inquiry in the matter of the service cards in accordance with the principles of natural justice and take suitable action according to law. From the aforesaid, it is clear that the order was passed on non-following the procedure of principles of natural justice and without giving them notice before termination and there was no order about exclusion of the intervening period for the purpose of pensionary benefits. But it is clear from the record that the applicant had worked for some time before 27.02.1993. In so far as the computation of effective service after 27.02.1993 is concerned, between 27.02.1993 to 28.11.1996, the applicant was on muster roll casual labour and he was not regularized so the service period has to be counted only half and the total service of 3 years 9 month one day makes only one year 10 month 16 days of effective service for being counted for the purpose of retiral benefits. And after his regularization on 28.11.1996 till his date of superannuation on 31.10.2021 he has served for 24 years 11 month 3 days but out of this, 2 years one month 1 day, he was remained absent so that effective service of the applicant will remain 24.5 years, hence the respondents have sufficiently explained their conclusion in para 17 of the counter affidavit, which can be summed up as under: -
| Sl. No. | Nature of employment | Length of service | Qualifying service |
| 1 | From the date of temporary status to the date of regularization | 3 years 9 month 1 day | 50% - 1 year 10 months 16 days |
| 2 | After being regularized | 24 years 11 months 3 days | 100% - 24 years 11 months 3 days |
| 3 | Absent from duty | 2 years 1 month 1 day | Deducted from qualifying service – 2 years 1 month 1 day |
| Total - 24 years 8 months 18 days round off 24.5 years |
But they have not been able to account and count the working period of the applicant before 27.02.1993 during which he had worked as M.R.A.P.M under T.I. Agra which is against the settled principle of law laid down by the Hon‟ble Supreme Court vide judgment dated 24.03.2017 passed in Civil Appeal No. 3938/2017 – Union of India & Ors Vs. Rakesh Kumar & Ors. In the aforesaid judgment, following has been held by the Hon‟ble Apex Court: -
“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 regularized 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.”
I have not been shown any contrary judgment of Hon‟ble Apex Court where the aforesaid judgment has been overruled where Hon‟ble Apex Court has clearly observed that the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension. However, as the Industrial Tribunal Award dated 05.10.2010 does not specify as to how to treat the intervening period spent in litigation and has specifically disallowed back wages for that period, hence the authority need not count that period for pension. The authority should ascertain the length of period worked before 27.02.1993 with wages and account such period for pensionable service in the light of above cited Hon‟ble Apex Court judgment. Hence, the respondents should examine that how much days the applicant had worked before 27.02.1993 and reckon 50% of that period for counting of qualifying service for the purpose of pension.
Having regard to the forgoing discussions and in view of the law laid down by the Hon‟ble Apex Court in the case of Union of India & Ors Vs. Rakesh Kumar & Ors (Supra), the OA is allowed. The respondents are directed to re-calculate the qualifying service for the purpose of pension taking into account his service which he rendered before 27.02.1993 within a period of four months from the date of receipt of the order and communicate the decision to the applicant forthwith.
All associated Misc. Applications stand disposed off.
No order as to costs.