IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 OP (CAT).No. 529 of 2010(S) --------------------------- OA.334/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS ------------------------------- 1. UNION OF INDIA , REP,BY THE GENERAL MANAGER,SOUTHERN RAILWAY HEADQUARTERS OFFICE, PARK TOWN PO,CHENNAI 600 003. 2. SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM 695 014. 3. SENIOR DIVISIONAL FINANCE MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM 695 014. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENTS: --------------- N.KUMARASWAMY,S/O.NEELAKANTA PILLAI, (RETIRED MOTOR VEHICLE DRIVER/GRADE-1, SOUTHERN RAILWAY, TRIVANDRUM),R/AT KASTHURI BHAVAN ENKARA, KUMARA KOIL JUNCTION,THAKKALA PO, KANYAKUMARI DISTRICT 629 702. ADV. SRI.T.C.GOVINDA SWAMY THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. .................................................................... O.P.(CAT) No.529 of 2010 .................................................................... Dated this the 22nd day of November, 2010. JUDGMENT Ramachandran Nair, J. Heard Sri.M.C.Cherian, Standing Counsel appearing for the petitioner-Railways and Sri.T.C.Govinda Swamy, counsel appearing for the respondent who took notice on admission and argued the matter. 2. The short question raised is whether the respondent is eligible to reckon his casual employment for the purpose of pension. Even though respondent put forward a case before the CAT that he was a Project casual employee and is entitled to have 50% of his service considered for pension, the same was turned down by the Tribunal for the reason that service as a casual employee in the Project was reckoned for the purpose of pension after sometime in 1980 and respondent rendered service for period prior to that. The case of the Railways is that when respondent's case as a casual employee is turned down by the Tribunal, for the very same reason they cannot grant pension to the respondent for the period he worked as a casual O.P.(CAT) 529/10 2 employee, though as a Driver. However, respondent's case before the Tribunal was that he, though as a Project employee, worked as a substitute for a Driver in a Jeep from 1.6.1974 till 21.1.1980 and this service period is eligible to be treated as service of a substitute and he is entitled to reckon this period for the purpose of pension. Even though counsel for the Railways produced some records to show that respondent worked as a casual employee, the records produced by the respondent before the Tribunal established that he worked as a Driver in the place of a vacancy on a regular pay of Rs.260/- - Rs.350/- from 1.6.1974 to 21.1.1980. After verifying the factual position with regard to the pay and allowances received by the respondent with records produced, the Tribunal granted relief to the respondent that is, to reckon the period of substitute service as a Driver for the purpose of counting pension. 3. Before us, counsel for the Railways controverted the factual position that is, with regard to the pay and allowances received by the respondent during his service as a Driver on casual employment. If what the counsel for the Railways says is correct, then the Tribunal's O.P.(CAT) 529/10 3 finding is not justified in as much as a substitute is a person who would have worked in a regular post on a regular pay, though on temporary basis, in a vacancy which may arise on account of leave or absence of a regular employee. So long as Railways retained the Jeep for the purpose of use by it's Officers, the post of Driver is a regular post and therefore, during absence of the Driver if another person was appointed, though on casual basis, to function as Driver and he has in fact worked so, then he answers the description of a “substitute” provided he was paid pay and allowances which a Driver under the Railways is entitled to. Going by the finding of facts rendered by the Tribunal that the respondent received the pay and allowances of a Driver during six years' period he worked on a temporary basis as a Jeep Driver, we feel the finding of the Tribunal is absolutely tenable. However, if the Tribunal's assumption that respondent was given the pay and allowances of a Driver during the period he worked from 1974 to 1980 is not correct, then the respondent will not be entitled to reckon the casual service for the purpose of pension. However, we do not want to settle the factual dispute on the pay and allowances received O.P.(CAT) 529/10 4 by the respondent during 1974 to 1980. If the Railways has records to prove that the pay and allowances given to the respondent as claimed by him based on documents produced by him was incorrect, it is for the Railways to file review petition with supporting documents and ask for correction. However, going by the finding of the Tribunal, the conclusion drawn by the Tribunal is correct. So much so, we dismiss the O.P.(CAT) leaving freedom to the Railways to file review first for correction of factual mistakes, if there is any mistake, and then to change the conclusion drawn by the Tribunal. C.N.RAMACHANDRAN NAIR Judge BHABANI PRASAD RAY Judge pms