IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 WP(C).No. 37676 of 2007(S) -------------------------- OA.77/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: ------------ 1. DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM-695 014. 2. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600 003. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENTS: ------------- K. SARASWATHI, D/O. NEELAKANTAN, RETIRED SR.GANGWOMAN, SOUTHERN RAILWAY, RESIDING AT PLAVELIVADAKKETHIL HOUSE, PONAKAM, MAVELIKKARA P.O. BY ADV. SRI.P.C.SEBASTIAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- W.P(C).NO.37676 OF 2007-S -------------------------------------------------------------- Dated this the 14th day of January, 2008. JUDGMENT Balakrishnan Nair, J: The respondents in O.A.No.77/2007 are the writ petitioners. The applicant therein is the respondent. The case of the applicant in brief is as follows: 2. She was engaged as an open line casual labourer with effect from 3.9.1975 and continued as such without any break upto 11.5.1976 and after a break of 10 days she was re- engaged on 21.5.1976 and she was discharged on 21.11.1976. She was re-engaged on 6.12.1976 and continued in service upto 20.1.1977. On the said date, she was retrenched and thereafter engaged from 27.1.1977. The applicant submitted that since her initial engagement was in the open line and as she has completed 120 days casual work in open line in the first spell of engagement between 3.9.1975 and 11.5.1976, she should have been granted temporary status. After the retrenchment on WPC.NO.37676/2007 . 2 21.11.1976, she was re-engaged on 6.12.1976 and the said spell of engagement continued up to 20.1.1977. Again she was engaged from 27.1.1977. Finally she was retrenched on 5.8.1981. Later she was re-engaged on 3.9.1996 from the live list of casual workers prepared as per the directions of the Apex Court in “Inder Pal Yadav”. Later she was absorbed in the Group-D post on 28.1.1997 and finally retired from service on 31.1.2006. The petitioner claimed that her casual service after the completion of 120 days initial service should be treated as temporary status service and, therefore, 50% of the same should be reckoned for granting the pensionary benefits. The said application was rejected by the competent authority. Challenging that order, Ext.P1 O.A was filed. Resisting that application, the respondent therein filed Ext.P2 reply statement. The applicant filed Ext.P3 rejoinder. The writ petitioners, who were the respondents in the O.A, filed Ext.P1 additional reply affidavit. The Tribunal, after hearing both sides, by Ext.P5 order held that the petitioner was engaged initially in the open line and, therefore, on completion of 120 days of service from 3.9.1975, she was entitled to be granted temporary status. It was also ordered to reckon 50% of the entire period of causal service rendered by the applicant WPC.NO.37676/2007 . 3 after the date of acquisition of temporary status and to re- determine her terminal benefits. The Tribunal, in its judgment, noticed that there is no categorical denial in the reply statement of the writ petitioners that the applicant has worked out from 3.9.1995 to 26.11.2006, as casual labourer in the open line. Taking into account this fact, the said relief was granted. 3. The Railways attacked the said finding. The learned standing counsel for the Railways took us to the reply statement filed by the respondent dealing with the claim of the applicant. We notice that there is no specific denial of the claim of the applicant that she was initially engaged in the open line. But, according to them, the service was not continuous and, therefore, the applicant could not have attained the temporary status. The learned standing counsel for the Railways referred to Rule 2504 of the Indian Railway Establishment Manual and contended that the service of the petitioner cannot be treated as continues. The relevant portion of the said rule relied on by the learned Standing Counsel reads as follows: “2504. Breaks in service:- The following WPC.NO.37676/2007 . 4 cases of absence will not be considered as breaks in service for the purpose of determining six months' continuous employment referred to in para 2501 viz:- (a) The periods of absence of a Workman who is under medical treatment in connection with injuries sustained on duty covered by provisions under the Workmen's Compensation Act. (b) Authorised absence not exceeding 15 days during the proceeding six months. Note:- Unauthorised absence or stoppage of work or the intervening period when the workman on his own changes from one work to another will be treated as a break in continuity of employment. ( c ) Non-performance of work on days of rest given under the Hours of Employment Regulations or under the Minimum Wages (Central) Rules 1950 and on days on which the establishment employing the labour remains closed does not constitute a break nor will it be counted against the limit of fifteen days referred to in (b) above. The term “authorised absence'' for this purpose covers permission granted by the supervisory official in charge to be away from work for the period specified.” 4. Going by the above Rule, we feel that the contention of the standing counsel cannot be accepted. As evident from Annexure-A1 card it would appear that even without giving the weekly rest days, the petitioner was being engaged. For example from 21.9.1975 to 20.10.1975 she has worked for 30 days She WPC.NO.37676/2007 . 5 was denied the weekly rest of four days in a month . Again from 29.10.1975 to 28.11.197 she was engaged for 30 days. Even then the Railways say her engagement is not continuous. 5. We feel that the above stand of the Railways cannot be accepted. Further, based on the pleadings and materials on record, the Tribunal has taken a plausible view that her initial engagement was in the open line. The mere assertion of the Railways that actually she was not engaged in the open line, therefore, cannot be accepted. No ground has been made out warranting interference with the findings of the C.A.T that the petitioner was initially engaged in the open line continuously for more than 120 days and, therefore, she is entitled to get temporary status after that. The interpretation given by the Railways to the “continuous service” that she had to work on all days in a month is plainly untenable and cannot be accepted. In the result, the writ petition is dismissed with costs. K. BALAKRISHNAN NAIR, JUDGE. P.N. RAVINDRAN, JUDGE. cl WPC.NO.37676/2007 . 6 WPC.NO.37676/2007 . 7