Sheela Devi vs Union Of India And Ors

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

"(i) Quash and set aside the impugned order which is reasoned and speaking order and is challenged as Annexure (A-1) and the Respondents to expeditiously release the „Service Gratuity‟ relating to the applicant‟s husband period of employment as per entitlement under Law without any further delay alongwith 9% p.a. interest accruing thereon from the day it fell due till it is paid to the applicant being the widowed wife of the deceased worker Ex-CLTS Late Shri Saudan Singh who did on 19.08.2009.

(b) Hold and direct the Respondents that denial of payment of Service Gratuity and Leave encashment as per the entitlement to a CLTS who acquired such status by operation of law under OM dated 10.9.93 on having died during employment while being a left over CLTS was in the process of Substantive absorption against a regular post by regularization in terms of provisions of Law is untenable in the eye of law, hence payment need be released forthwith by way of entitled amount of Service Gratuity and Leave encashment with 9% interest on both when became due till paid on the analogy of the judicial pronouncement in the matter of Shri Jaipal Singh vide order dt. 13.3.2015 passed in OA No. 1255/2013 which has attained finality.

(c) Pass any other or direction as deemed just and proper in the facts and circumstances of case with award of the cost of this OA in favour of the Applicant against the respondents."

The brief facts of the case are that this is the second round of litigation. Earlier, when having received no response on her representations for release of payment of gratuity and leave encashment, the applicant had filed OA No. 42/2018 and the said OA was disposed of by the Tribunal vide its order dated 10.01.2018 giving direction to the respondents to decide the representation of the applicant by passing a reasoned and speaking order. The respondents thereafter issued the reasoned and speaking order dated 12.03.2018 whereby the representation of the applicant dated 23.11.2017 for release of payment of leave encashment and service gratuity was rejected. The applicant in the present OA has challenged the said order dated 12.03.2018 of the respondents on the grounds that the applicant had obtained the status of CLTS and hence, denial of payment of leave encashment and service gratuity would amount to violation of 5(iii) and (v) of DoPT OM dated 10.09.1993. He has thus filed the present OA.

The respondents, while contesting the OA, have filed the reply in which they have stated that husband of the applicant was not under any contractual agreement with this establishment and was paid for the day he was engaged for work and similarly, it is also not obligatory for this establishment to engage all daily rated workers who report for duty as the workers are taken on duty as per the requirement of work on that particular day and availability of workers on first come first service basis and there have been numerous cases where some daily rated works have served for few days and thereafter have not come back again for work or have come back for work after lapse of several months/years. They have further contended that since the husband of the applicant had died on 19.08.2009 without being regularized, she is not entitled for any leave encashment or gratuity. They have thus submitted that the order passed by them on 12.03.2018 is a true compliance of the Tribunal‟s order dated 10.01.2018 passed in OA No. 42/2018 and prayed for dismissal of the present OA.

After hearing the learned counsel for the parties and perusing the pleadings available on record, it necessary to examine the order dated 12.03.2018 of the respondents passed  in  compliance  with  Tribunal‟s  order  in  OA  No. 42/2018 and which reads as under:-

"2. As per records available in this office, your husband late Shri Saudan Singh was initially engaged as a daily wages labourer since Apr 1987 as on required basis and thereafter he was accorded temporary status of casual labourer w.e.f 01 Jul 1996 in terms of DOP&T OM No.51016/2/90-Estt.(C) dated 10 Sep 1993. Your husband had served with this est as Daily Rated worker for 1280 days from Apr 1987 to 30 Jun 1996 and as Casual Labourer with Temporary Status (CLTS) for 2477 days from 01 Jul 1996 to Aug 2009 which comes to 06 years, 09 months and 17 days. The individual died on 19 Aug 2009 without being regularized in the permanent post.

No screening was carried out as per rules and regulations for appointment to any Govt. post while engaging your husband as daily wages labourer.

Similarly even while according CLTS status also, no selection procedure was followed as all the daily wages labourers meeting the mandatory requirements as per para 4(i) of the DOP&T OM No. 51016/2/90-Estt.(C) dated 10 Sep. 1993 were given the CLTS status on 01.07.1996 at EBS Babugarh. Under the authority of DOP&T OM No. 51016/2/90-Estt.(C) dated 10 Sep 1993. 172 daily rated workers were accorded temporary status of casual labourer w.e.f. 01.07.1996.

Whereas your husband late Shri Saudan Singh was given a chance to undergo the screening process in 2005 and 2008 but he could be selected being low in merit in comparison to other CLTS that had appeared for selection process as the number of CLTS held in this unit were much more than the number of vacancies and availability of 2/3rd vacancies of direct recruitment as per the existing recruitment rules and provisions of para 8(i) of DOP&T OM No.51016/2/90-Estt.(C) dated 10 Sep 1993 were adhered.

Whereas in the year 2005, 45 CLTRS who fulfilled the extant recruitment rules and qualified in merit were regularized. It is further intimated that the recruitments carried out in 2005 and 2008 were as per rules in vogue. Candidates considered low in merit in the year 2005 were selected during 2008 due to improvement in their performance and aptitude, thus reflecting the transparency and impartiality of the board. There has never been an embargo on an individual once rejected not to be selected later. It needs to be appreciated that in a recruitment process all CLTS employees cannot be regularized at once because of limited number of vacancies. No CLTS was debarred from appearing in the recruitment process as per then applicable Recruitment Rules.

As per the provisions of para5(iii) of DOP&T OM No.51016/2/90-Estt.(C) dated 10 Sep 1993, the Leave Encashment is payable only to the employees who have been regularized and since in the present case, late CLTS Saudan Singh was never regularized, hence, as per DOP&T letter quoted, he is not entitled for leave encashment and question of payment of interest thereof does not arise. The relevant portion of para 5(iii) of the said OM is being reproduced herein for ready reference:-

"Leave entitlement will be on a pro rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave except maternity leave will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.

As per the provisions of para 5(v) of DOP&T OM No.51016/2/90-Estt.(C) dated 10 Sep 1993, there is no provision of retirement benefits for persons not regularized. The relevant portion of para 5(v) of the said OM is being reproduced herein for ready reference:-

"50% of service rendered under Temporary status would be counted for the purpose of retirement benefits after their regularization. "

The above speaking order has been duly vetted by the Dte. Gen Remount Veterinary Services, IHQ of MoD (Army), New Delhi."

A perusal of this order passed by the respondents on 12.03.2018 establishes that the late husband of this applicant was a casual labourer whose services were accorded temporary status in 1996 and he had served for almost 7 years when he passed away in August, 2009 without being a CLTS. He was given the opportunity and had participated in the screening process in 2005 and 2008 but on account of his being lower in merit, he could not be regularized. Hence, as the late husband of the applicant, CLTS Saudan Singh was never regularized, therefore, he was not entitled for leave encashment and consequently, the same was not given to him. We have also perused the DOPT OM No.51016/2/90-Estt.(C) dated 10 Sep 1993 and more particularly, the provisions of para5(iii) of DOP&T OM No.51016/2/90-Estt.(C) dated 10 Sep 1993, which reads as under:-

"Leave entitlement will be on a pro rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave except maternity leave will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service.

Hence, as per the aforesaid provisions of para5(iii) of DOP&T OM dated 10 Sep 1993, the applicant is not entitled for leave encashment  and payment  of  interest thereof  as  the  services  of  her  late  husband  were  never regularized and the same is applicable only to the employees who have been regularized.

We have further perused the provisions of para 5(v) of DOP&T OM No.51016/2/90-Estt.(C) dated 10 Sep 1993 which clearly provides that "50% of service rendered under Temporary  status would  be  counted  for the  purpose  of retirement benefits after their regularization" and find that this provision is not applicable to the case of the applicant, as her husband had died before regularization of his services. Hence, in view of the same, the applicant is not entitled for retiral benefits as her late husband had died before  regularization  of  his  services.  We  are  thus  fully satisfied with the reasoning given in the aforesaid order of the respondents dated 12.03.2018 and hence, we do not find any reason to set aside the same.

In view of the above, there is no merit in the OA and the same is dismissed. No costs.