Jagdish Prasad vs Chairman

The applicant has filed this OA seeking the following reliefs :-

i. Set-aside the impugned order dated 12.06.2018 passed by the respondents.

ii. to sanction Compensation Pension or Compassionate Allowance at the rate of 2/3 of pension and 2/3rd of Gratuity w.e.f.2011 or

iii. be granted compensation pension w.e.f. July 2014.

iv. or any other order or directions as deemed fit in the facts and circumstances of the case may be passed.

The applicant entered into service of the DTC in 1986 as Conductor in Naraina Depot. He worked till 1988 and declared surplus. He was further called to work as Conductor in 1998. He stopped working from 2011 due to ill health. Applicant made a representation dated 23.03.2018 for grant of compensation allowance/proportionate service benefits. He further sought reliefs by filing OA No.1566/2018 in this Tribunal. The Tribunal passed order dated 07.04.2018 and directed the respondents to pass appropriate speaking order on his representation. The respondents passed the impugned order on 12.06.2018 and rejected his representation. The applicant has sought reliefs on the ground that Rule 41 of CCS (Pension) Rules provides that "a government servant who is dismissed or removed from service shall forfeit his pension and gratuity; Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension."

The applicant has also relied upon the order of Hon‟ble High Court of Delhi passed in Writ Petition (Civil) No.5544/2007 on 22.02.2008. The applicant has also relied upon the orders in OA No.1353/2005.

The respondents in their counter reply have opposed the OA stating that the applicant is not entitled to relief(s) sought in the present OA. The present OA is not maintainable and is pre-mature. This is also second round of litigation. The applicant had earlier filed OA No.1566/2018 on 27.04.2018 wherein the Hon‟ble Tribunal directed the respondents to consider the representation of the applicant dated 23.03.2018 for sanction of Compensation Pension or Compassionate Allowance. The OA was disposed of with these directions at the admission stage itself.

On receipt of the above order, the respondents considered the request of the applicant vide order dated 12.06.2019 which was also followed by two subsequent letters dated 28.06.2018 and 06.08.2018. It is further stated that the applicant was appointed as Retainer Crew (Conductor) vide order dated 27.07.1993 and posted at Naraina Depot. His services were dispensed with vide order dated 04.07.2011 due to unauthorized absence under para 4(XIV) of the executive instructions governing the employment of retainer crew. As a daily wager he is entitled for only P.F. amount if any/E.P.S. 1995 Pension Scheme. It is also stated that Rule 41 of Pension Rules is applicable in case of regular employee and not to the daily wagers. The applicant is only entitled to P.F. Balance, if any/E.P.S. 1995 Pension Scheme. It has also been reiterated that in terms of the order of the Tribunal dated 27.04.2018 in OA No.1566/2018, the respondents have passed the detailed speaking order clearly indicating that the applicant was inducted as Retainer Crew (Conductor) and his services were dispensed with earlier on 17.06.1988 and later again on 04.07.2011. It is mentioned in the impugned order that the applicant is not entitled for DTC pension as he was a daily wager. However, the applicant was advised that he is eligible for payment of due amount of PF and Pension Scheme under EPS 1995 for which he was advised to provide certain documents and submit certain forms. Following this the respondents issued two more letters dated 12.06.2018 and 28.06.2018. However, the applicant did not come forward and submit the required documents, he instead filed the present OA.

Heard learned counsel for the applicant, Shri P.C.Mishra and learned counsel for respondents, Shri Manish Garg.

It is evident that the applicant was appointed as a Retainer Crew Conductor on daily wage initially for a period of two years from 1986 to 1988. Later, he was again deputed as Retainer Crew on daily wages from 1998 onwards. In 2011, according to the applicant he discontinued work due to his ill health. However, according to the respondents his services were dispensed with due to his unauthorized absence vide letter No.GPD/AI/2010/2011/1806 dated 04.07.2011 in terms of executive instructions governing the employment of retainer crew. Conditions of the service of retainer crew conductor indicate that such persons shall work on daily wages. It is also indicated that his appointment is purely temporary and his services can be terminated without giving any notice or assigning any reason at any point of time.

This is also second round of litigation. The first OA No.1566/2018 filed by the applicant was disposed of vide order dated 27.04.2018 with a direction to the respondents that they should consider the representation of the applicant dated 23.03.2018. In terms of the order passed by the Hon‟ble Tribunal the respondents in compliance have passed a detailed impugned order dated 12.06.2018 followed by two reminders dated 28.06.2018 and 06.08.2018. The position has been clarified that the applicant is not entitled for DTC pension as he was only a daily wager. The applicant is however entitled for PF and E.P.S. Pension 1995 Scheme, for which certain documents should be submitted by him. The applicant has however not completed these formalities.

The applicant in the present OA seeks relief in terms of quashing the impugned order dated 12.06.2018 and praying for compassionate allowance. The judgment of the Hon‟ble High Court relied upon is primarily about the compassionate allowance being provided to the regular employee and not to the daily wager and is therefore, not relevant to the facts of present OA.

In this case it has been clearly established that the applicant is not a regular employee of DTC and, therefore , he is not entitled for DTC Pension. He was a daily wager and his services were dispensed with on two occasions. The executive order governing under service conditions of such daily wager Retainer Crew Conductor clearly indicate that their appointment is purely temporary and their services can be terminated without giving any notice or assigning any reason at any point of time. This service condition is duly applicable to the applicant.

It is also important to note that in the first round of litigation the applicant has approached the Tribunal for seeking disposal of his representation. The same has been decided by the respondents asking the applicant to complete certain formalities for his due payments but the applicant has not completed those formalities and has approached this Tribunal with the same prayer that was made in the earlier OA and in his representation dated 23.03.2018.

From the above mentioned, it is obvious that the applicant has been duly advised by the respondents to complete certain formalities for his due payments but the applicant has not done the same. The applicant should have applied for the dues, for which he was entitled in terms of impugned order instead of filing the present OA which has already been decided earlier.

In view of the above mentioned, I do not find any merit in the present OA and the same is accordingly dismissed.

MA No.3291/2018 stands disposed of.