K.John Rose vs Union Of India & Ors.

Per : Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER

These two O.As have been filed by two applicants (one in each O.A) who are both retired Track Maintainers of the Southern Railway, Thiruvananthapuram Division. The applicant in O.A.No.961/2019 superannuated from service on 31.05.2012 while the applicant in O.A.No.962/2019 superannuated from service on 30.04.2012. The applicant in O.A.No.961/2019 was appointed by an order dated 02.09.2008 and notionally given the benefit of appointment with effect from 03.11.2003 as per the decision of this Tribunal confirmed by the Hon'ble High Court of Kerala and also by the Hon'ble Apex Court. Similarly, the applicant in O.A.No.962/2019 was appointed by office order dated 01.03.2006 and notionally given the benefit of appointment with effect from 03.11.2003 also in terms of the decision of the Tribunal, confirmed by the Hon'ble High Court of Kerala and also by the Hon'ble Apex Court. The order of appointment giving the date of appointment as Track Maintainers as 03.11.2003 has been produced in both the O.As at Annexure A-1. It has been mentioned in this order that in compliance with the judgment of the Hon'ble High Court of Kerala at Ernakulam passed in W.P.C.No.23757/2010 and upheld by the Hon'ble Supreme Court in SLP/Dy.No.4822/2018, the date of appointment of the under mentioned Track Maintainers is deemed to be regularized with effect from 03.11.2003. The applicant in O.A.No.962/2019 appears at Sl.No.6 whereas the applicant in O.A.No.961/2019 appears at Sl.No.11 of the said Memorandum. As stated earlier, the date of retirement of the applicant in O.A.No.961/2019 is shown as 31.05.2012 and that of the applicant in O.A.No.962/2019 is shown as 30.04.2012. Both have been shown as deemed regularized with effect from 03.11.2003 as mentioned earlier.

It is submitted by the applicants that they were initially covered under the New Pension Scheme. However, later they were notified to be converted to the Railway Services (Pension) Rules, 1993, since their appointment was with effect from 03.11.2003 (before 01.01.2004). They were then advised to remit the amounts credited to their New Pension Scheme accounts back to the cash office in Thiruvananthapuram Division. The applicant in O.A.No.961/2019 was directed to remit Rs.67200/- while the applicant in O.A.No.962/2019 was directed to remit Rs.1,35,484/-. Copies of the orders dated 24.05.2018 served on both the applicants informing them that their New Pension Scheme should be converted to Old Pension Scheme and advising them to remit the sum of money as indicated to the cash office at Thiruvananthapuram from their New Pension Scheme account have been produced in the respective O.As both at Annexure A-2. They were also asked to submit the cash receipts to the office after remitting the said amount. Accordingly, the applicant in O.A.No.961/2019 has produced a copy of a cash receipt/payee folio showing that he has remitted a sum of Rs.67200/- and the applicant in O.A.No.962/2019 has also similarly produced a copy of a cash receipt/payee folio showing that he has remitted a sum of Rs.135484/-. These copies of cash receipts have been produced in both the O.As both at Annexure A-3.

After this, the applicants made separate representations in early 2019, which has been produced at Annexure A-4 in each of the O.As., addressed to the Senior Divisional Personnel Officer, Thiruvananthapuram Division stating that even though it has been more than 7 to 8 months after the money had been remitted, they had not yet been paid pension (service gratuity in lieu of pension) as well as retirement gratuity for the period from 03.11.2003 to 31.05.2012 in the case of applicant in O.A.No.961/2019 and for the period from 03.11.2003 to 30.04.2012 in the case of applicant in O.A.No.962/2019. It was, therefore, requested to the Senior Divisional Personnel Officer to arrange to pay the pension/service gratuity (in lieu of pension) as well as the retirement gratuity for the said period at an early date. However since no action was taken by the respondents in this regard, they have filed the two O.As. It is submitted that they were directed to submit the pension papers which they did in accordance with law. However, they were not paid pension or any other amount on the ground that they did not have the sufficient qualifying service of ten years as on the date of retirement. Both the applicants submit that in terms of Rule 69(1) of Railway Services (Pension) Rules, 1993, in cases of railway servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity payable is at the rate of half month's emoluments for every completed six monthly period of service. This service gratuity is paid in lieu of pension and is in addition to the retirement gratuity, payable under Rule 70 of Railway Services (Pension) Rules, 1993.

It is submitted that the applicants are entitled to the above benefits and non-feasance on the part of the respondents to pay the same, despite a lapse of so many years from the date of remittance of the New Pension Scheme amount is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. Their representations at Annexure A-4 in each of the O.As have so far not been responded to. Their rights for the service gratuity and retirement gratuity has thus not been considered by the respondents.

Shri.T.C.Govindaswamy, learned counsel for the applicants has produced copies of the Railway Services (Pension) Rules, 1993. Rule 69 (1) relating to the grant of pension reads as follows :

It is submitted that the respondents are duty bound to give the applicants the service gratuity in lieu of pension as well as retirement gratuity for the period of service reckoned as qualifying service in accordance with Rule 69(1) and Rule 70 (1)(a) of the Railway Services (Pension) Rules, 1993. The applicants have also sought a declaration that non-feasance on the part of the respondents to release the service gratuity and retirement gratuity under Rule 69(1) and Rule 70 of the Railway Services (Pension) Rules 1993 is arbitrary, discriminatory and unconstitutional. They have also sought for a direction to the respondents to pay both the service gratuity and retirement gratuity as provided for under the aforesaid rules forthwith for the period as indicated in each case earlier, with interest at the rate of 9% per annum with effect from 01.07.2018, as they had remitted the New Pension Scheme amounts to the respondents in June, 2018. However, the respondents have not filed any reply statement in both the O.As, inspite of the fact that both the O.As were admitted on 01.01.2020. The respondents were directed at the time of admission to file a reply statement in each O.A within three weeks. They were given several opportunities through adjournments in order to file reply statements. However, no reply statement has been filed so far. Ultimately, this Tribunal has in its hearing on 29.03.2022 had no option but to forfeit their right to file a reply statement.

From the facts of the matter as indicated above as well as from the documents provided it is clear to us that the two applicants have a right to get the service gratuity along with retirement gratuity due to them on the basis of the dates/years of service as indicated earlier in each case. We, therefore, direct the respondents to immediately take necessary steps to release their due service gratuity and their retirement gratuity, within a period of two months from the date of receipt of a copy of this order. Further, since the matter has been delayed without any reason and since the respondents have also not cared to explain the delay in the matter, the prayer for relief in each of the O.A ie. for payment of interest at the rate of 9% per annum with effect from 01.07.2018 at Sl.No.2 is also granted.

The O.As are accordingly disposed of with the above directions. No order as to costs.