IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION Nos. 15807 and 15808 of 2003 with SPECIAL CIVIL APPLICATION Nos. 4776, 5641, 5770 of 2004 Date of Decision: -05-2005 -------------------------------------------------------- RUKHIBEN RUPABHAI Versus UNION OF INDIA -------------------------------------------------------- [For Full Title see Page 2] Coram: The Hon'ble Mr. Justice Bhawani Singh, Chief Justice The Hon'ble Mr. Justice H.K. Rathod, Judge Whether approved for reporting? For the appellants: MR PH PATHAK For the Respondents: MR RM VIN MR MUKESH A PATEL MR NS SHEVADE MS MEGHA JANI --------------------------------------------------------- PER: BHAWANI SINGH, CHIEF JUSTICE (C.A.V):- 1. This group of five cases (S.C.A.No.15807/03 : --------------------------------------------------------- Whether Reporters of Local Papers may be allowed to see the Judgment? Smt.Rukhiben Rupabhai, widow of Rupabhai Megabhai vs. Union of India & Ors., S.C.A.No.4776/04 :Mrs.Valliamma Armugam, widow of Kalian Muthuswamy vs.Union of India & Ors., S.C.A.No.5641/04 :Smt.Sakudi B.Damor, widow of Bhikhabhai Virsinh vs.Union of India & Ors., S.C.A.No.5770/04 :Smt.Puniben M.Mandora, widow of Mathurbhai Mandora vs.Union of India & Ors., S.C.A.No.15808/03 :Mrs.Chandra Muthuswamy, widow of Vishwalingam Chidambaram vs.Union of India & Ors.) is proposed to be decided by this judgment, since the question involved for consideration and determination is same, except slight variation in S.C.A.No.15808/03: Mrs.Chandra Muthuswamy, widow of Vishwalingam Chidambaram vs.Union of India & Ors., where employee was initially Casual Labourer for approximately ten years, thereafter appointed Substitute. 2. However, before dealing with the precise submissions advanced by the learned counsel for the respective parties, desirable it would be to make mention of material facts of these Petitions. S.C.A.NO.15807/03: 3. Shri Rupabhai Megabhai (deceased) was in the service of respondents since 1976 to 1986. He died in harness leaving behind the widow and the children. The family has no other source of income. It was fully dependent on relatives. After the death of her husband, petitioner was not paid family pension, therefore, she approached the Central Administrative Tribunal (CAT), Ahmedabad Bench, through Original Application No.129 of 2002 stating that in the similar case of widow of Casual Labourer with temporary status, family pension had been granted by the Tribunal, the appeal (S.C.A.No.12456/03) against the said decision having been rejected by this Court, therefore, respondents be directed to grant her family pension on similar lines. CAT did not follow the precedent since this Court did not decide the S.C.A.No.12456/03 on merits. The husband of petitioner was granted temporary status. There was no justification for his non-absorption as permanent employee of the Railways. Temporary status employees are to be treated at par with the temporary employees of the Railways, therefore, they are entitled to same benefits, including family pension. 4. Respondents state that husband of petitioner expired on 20-09-1986. Petitioner started the dispute in 2000, therefore, matter is belated. Competent authority passed the order dated 01-02-2002 after consideration of facts of the case in the context of Rules, Regulations and provisions of Indian Railway Establishment Manual (IREM), therefore, order of CAT dated 10-09-2003 in O.A.No.129/02 is just and proper requiring no interference, particularly in absence of patent irregularity or error apparent on the face of the record, as per Apex Court decision in Mohd.Yunus vs. Mohd.Mustaqim (AIR 1984 SC 38). There is no scope for judicial intervention in exercise of extraordinary jurisdiction under Article 226/227 of Constitution of India, otherwise, scheme was formulated and finalised as per Apex Court decision in Indrapal Yadav's case (1985(2) SCC 648). Scheme stipulates that project casual labourers are granted certain incentives/benefits with passage of time, but at no point of time, it was intended by the Railway Administration to treat those persons as permanent employees or members of regular staff. Dailywagers/project casual labourers were being given temporary status on completion of stipulated days and identified as project casual labourers with temporary status'. Such workers are extended the benefits like scale of pay, pass & PTO facilities, medical facilities, leave facilities. They are governed under DAR Rules. Such employees have to undergo the scrutiny process prescribed for treating them regular/permanent employees of the Railway Administration. On getting a temporary status, such employee becomes eligible for almost all the benefits available to the regular employees. Regular posting/appointment would depend upon availability of regular vacancy and eligibility of the candidate. The holding of temporary status in regular set up is a stage after undergoing the process of scrutiny of candidate and clearance of the test and before posting on a regular set up of vacancies. Therefore, the word "temporary servant" is having altogether a different meaning and status in Railway establishment than the common meaning of the word `temporary servant'. Even the word `project casual labourer with temporary status' and `temporary servant' are altogether different posts, unless and until such project casual labourers with temporary status undergo the scrutiny and test required for the purpose of discharging the work as `temporary railway servant'. Rule 75 of Railway Pension Rules, 1964, pertains to the Railway Pension Scheme for railway servants. The expression "railway servant" is used for granting family pension. Rule 3(23) of the Railway Service Pension Rules, 1993, specifically exclude the project casual labourers from the meaning of railway servant. Para 1501 of IREM provides the meaning of temporary railway servant. It specifically excludes `project casual labourer with temporary status' and/or `project casual labourers', meaning thereby the persons who are `project casual labourers with temporary status' are not `temporary railway servants'. A combined reading of different provisions of Railway Pension Rules, Family Pension Rules and IREM, makes it clear that pensionary benefits are admissible to employees who are holding temporary status after undergoing all the formalities and requirements like scrutiny, test, etc. Such persons have to complete the period of qualifying service for getting pensionary benefits. Since the husband of the petitioner had the status of project casual labourer with temporary status, he did not fall within the meaning of temporary railway servant, therefore, not entitled to pensionary benefits. It is denied that late Shri Rupabhai Megabhai was serving with the respondents since 1972 to 1986 in the absence of specific evidence/details. Petitioner did not approach for grant of family pension earlier, she advanced the claim after family pension was granted to some other project casual labourers, without noticing the difference of facts. It is denied that the husband of the petitioner was granted temporary status as alleged. It is also denied that he was not absorbed as permanent employee of the railway without any justification. Assuming he was project casual labourer holding temporary status, he would not be eligible for benefit of family pension in terms of Rules 75, 104, 801, 3(23) read with clause 1501 of IREM, therefore, it is denied that temporary status employees are required to be treated at par with temporary employees of Railways. Ratio in Ram Kumar's case (1988(1) SCC 306) is that normally without undergoing the process of selection/scrutiny test, etc., benefit of pension (regularised employee) could not have been granted. In review decision in Ram Kumar's case (1996 (1) SLJ 116) the Apex Court considered change of factual aspects, but the law laid down and findings given on the points cannot be said to have been changed. It was a matter pertaining to decision taken by the Railway Board accepting the IVth Pay Commission Report providing for pension at the time of superannuation even to those who are temporary employees. Moreover, in Ram Kumar's case (1) and review petition in Ram Kumar's case (2), the point at issue was the entitlement of pension to "casual labourers" and not `family pension' of such casual labourers. The temporary employees defined under Rule 3(2)) of Pension Rules, 1993 read with para 1501 of IREM do not include `project casual labourers with temporary status', like the petitioner's husband. The directions in the said case were pertaining to only those applicants considering the facts of the said persons only. `Substitutes' have altogether a different position in Railways. The nature of post is altogether different, therefore, the case of Prabhavatidevi (1996 AIR SCW 61) is of no help to the petitioner, therefore, wrong interpretation/meaning is taken of Apex Court decision in Ram Kumar's cases. Apex Court decision in Rabia Bikaner's case (AIR 1997 SC 2843) is relevant and binding, therefore, cannot be termed per incuriam. Facts in Mohan Lakha vs. Union of India (O.A.No.419 of 2000) decided on 31-07-2002 and Union of India vs. Mohan Lakha (S.C.A.No.6164 of 2003) rejected on 05-05-2003, against which Special Leave Petition filed by Union of India is dismissed on 19-01-2004, and other cases cited by the petitioner turn on different facts, therefore, it is denied that employees with temporary status are entitled to benefit of pension as alleged. S.C.A.No.4776/04:- 5. Shri Kalian Muthuswamy (deceased) served the Railways from 1973 to 1988. He was employed casual labourer in 1973 on permanent nature of work. He was granted the benefit of temporary status from 01-01-1981. He died on 18-12-1988. Petitioner contends that Railways had no justification for not regularising the services of her husband though granted temporary status from 01-01-1981. CAT ignored the precedents and rejected the claim denying rightful claim of family pension to the petitioner. Temporary railway servants have been granted pension by the Railways accepting IVth Pay Commission Recommendations. Even otherwise, such employees are entitled to family pension under the Railway Rules and Regulations initially upheld by CAT and this Court holding that temporary status casual labourers are entitled to get pension and family pension, etc. CAT ought not to have taken a different view of the matter and followed the precedents. Ram Kumar's case (2) ought to have been followed by CAT, failure to do so amounts to disobedience of binding precedents and otherwise going against the provisions of IREM and order dated 15-04-1987 allowing pensionary benefits to temporary railway servants on acceptance of IVth Pay Commission Recommendations. Actions of respondents violate provisions of Articles 14, 21, 41/42 of the Constitution of India depriving the petitioner of family pension without justification, at this age and stage of life; respondents having utilised the services of her husband for number of years without regularising the service, thereby committing serious acts of omission and commission. Turning back to the genuine and justifiable grievances of the petitioner by putting up defences giving different interpretations to Rules, Regulations and judicial decisions hardly behoves organisations like Railways, employing and keeping massive force. 6. Separate affidavit in defence has not been filed in this case, but this case is similar to S.C.A.No.15807/03 in which detailed reply has been filed. S.C.A.No.5641/04:- 7. Shri Bhikhabhai Virsinh Damor (deceased) served the Railways from 1980 to 1997. He was employed as casual labourer in 1980 on permanent nature of work. He was granted temporary status from 01-01-1985. He died on 23-08-1997. Grievance of the petitioner is that Railways had no justification not to regularise the services of her husband though granted temporary status from 01-01-1985. CAT rejected her claim for family pension without justification without following precedents, Rules and Regulations of Railways like IREM, Order dated 15-04-1987 granting pension to temporary employees pursuant to acceptance of IVth Pay Commission Recommendations. The temporary status casual labourers are entitled to get pension and family pension, etc. like other temporary employees of Railways, otherwise allowed by judicial pronouncements. Husband of petitioner was not regularised by Railways, therefore, non-regularisation is an act of omission and commission on the part of the Railways, which cannot be allowed to raise the same. Other averments of petitioner are similar to petitioner in S.C.A.No.4776/04. 8. The respondents admit that Bhikhabhai Virsinh was casual Gangman. He was granted temporary status. He was employed in Railways on 28-04-1980, granted temporary status on 01-01-1984, however, he was not regularised till his death on 23-08-1997 due to non-availability of post in permanent cadre. Since the deceased employee was not a permanent employee of the Railways, the petitioner is not entitled to family pension. As per Pension Rules, terminal gratuity admissible under Rules has been paid. Petitioner is governed by by the Railway Service (Pension) Rules, 1993. Railway Board's Circular RBE 90/87 is with respect to Manual of Railway Pension Rules, 1950, while the petitioner is governed by Railway Service (Pension) Rules, 1993, therefore, this Circular is not applicable to this case. Ram Kumar's case (2) is not applicable to this case, which is of casual labourer with temporary status. There is difference between `a temporary employee' and `a casual labourer with temporary status'. `Temporary railway servant' is defined in para 1501 of IREM (Vol.1), therefore, it is denied that the casual labourers with temporary status are entitled to pension/family pension. This apart, petitioner is not entitled to family pension, since the criteria prescribed in Rule 75 of the Railway Service (Pension) Rules, 1993, is not satisfied in this case. Consequently, all the claims advanced by the petitioner for claim of family pension have been repudiated. 9. Rejoinder of petitioner dated 03-09-2004 mentions that respondent had no justification for not absorbing her husband for fourteen years [L.Robert D'Sousa v. E.E., Southern Railway (AIR 1982 SC 854)]. CAT did not follow binding decisions nor Railway Rules, Regulations and Circulars extending benefits of pension to temporary employees. Ram Kumar's case (2) is applicable in this case, contention to the contrary is misconceived. There is no difference between temporary employees and casual labourers with temporary status with regard to benefit of pension, issue clearly clarified by Apex Court in Ram Kumar's case (2), otherwise, relevant Rules of Railways, provisions of IREM interpreted by the Court leave no manner of doubt about admissibility of family pension to the petitioner. CAT ought to have referred the matter to Larger Bench in case it intended to take a different view of the matter. S.C.A.5770/04:- 10. Shri Mathurbhai Mandora (deceased) served Railways from 1980 to 1997. He was employed as casual labourer in 1980 on permanent nature of work. He was granted temporary status from 01-01-1985. He died on 23-08-1997. Grievance of the petitioner is that Railways had no justification not to regularise his services though granted temporary status from 01-01-1985. CAT passed the order ignoring binding precedents, IREM and Railway Board order dated 15-04-1987 allowing pensionary benefits to temporary employees pursuant to acceptance of recommendations of the IVth Pay Commission. Other contentions raised by the petitioner in this case are similar to the cases referred to hereinbefore. 11. Respondents submit that Mathurbhai Mandora was a casual Gangman. He was granted temporary status. He was employed by Railways on 13-09-1983, granted temporary status on 09-09-1984, however, he was not regularised till his death on 23-08-1997. Since the deceased was not a permanent employee of the Railways, petitioner is not entitled to family pension, but terminal gratuity admissible as per Rules has been paid. Other averments in this reply are similar to reply in S.C.A.5641/04. 12. Rejoinder states that respondents have no justifiable reasons for not absorbing the husband of the petitioner for fourteen years [L.Robert D'Sousa v. E.E., Southern Railway (AIR 1981 SC 854)]. Through other averments, the case put up by respondents has been thoroughly repudiated and claim for grant of family pension asserted. S.C.A.No.15808/03:- 13. Shri Vishwalingam Chidambaram (deceased) joined Railway service in 1979. He was engaged in open line, namely, maintenance work under CPWI, Rajkot. While in service, he expired on 02-06-1990 after putting more than 10 years service. He was treated `substitute' and granted temporary status. He was entitled to get temporary status after completion of 120 days of service. He was screened on 31-12-1986 for regular absorption. Against non-grant of family pension, CAT was approached through O.A.525/93, which disposed of the matter on 06-12-1995. Request for family pension has been rejected on the ground that casual labourer with temporary status is not entitled to the benefit of family pension. Again, O.A.No.422/96 was filed against denial of the claim. However, vide order dated 04-08-2000, CAT rejected the claim on the ground that husband of the petitioner rendered only two months' service after he was declared substitute. Review application, pointing out that similar claim had been allowed by Co-ordinate Bench, has been rejected permitting the petitioner to file representation for relaxation of Rules. Claim seems to have been rejected on the ground that husband of the petitioner was not regularised. He was temporary status casual labourer, therefore, not entitled to family pension. Accordingly, petitioner challenges non-grant of family pension, submitting interalia that she is entitled to the same in terms of judicial pronouncements based on interpretation of IREM and other Rules, Regulations and Circulars on the subject and deprivation thereof amounts to violation of Articles 14, 16, 21, 41/42 of the Constitution of India. 14. Respondents submit that husband of the petitioner was engaged as a casual labourer in 1979. He expired on 02-6-1990. He had not rendered minimum required qualifying service for pensionary benefits. It is submitted that 50% of service rendered by a casual labourer with temporary status is considered towards qualifying service provided regularisation/absorption follows. A casual labourer with temporary status, not regularised in service before his death is not entitled to pensionary benefits, consequently, his widow is not entitled to family pension. The husband of the petitioner was not regularised/absorbed in service before his death on 02-06-1990. Even as a substitute the husband of the petitioner had not rendered minimum required qualifying service for pensionary benefits. For grant of family pension, employee should have been regularised. This case is squarely covered by Apex Court decision in Union of India v. Rabia Bikaner (AIR 1997 SC 2843) and decision in Prabhavatidevi vs. Union of India (1996(7) SCC 27) is not applicable to the facts of the case. Representations of petitioner have been decided by competent authority and demand of petitioner is not legal. CAT has decided the case in accordance with law. Ram Kumar's case (2) does not help the petitioner, therefore, petitioner is not entitled to family pension. 15. Rejoinder states that husband of the petitioner was in service from 1976 to 1990. Submission that husband of petitioner did not render sufficient qualifying service is opposed pointing out that respondents should have absorbed him, temporary Railway servant is entitled to family pension after one year of service, respondents cannot take advantage of their wrong in not absorbing her husband, Rabia Bikaner's case (supra) is not applicable, rather Mohan Lakha's case (supra) decided by the Division Bench is applicable. Rabia Bikaner's case is per incuriam, three Judge Bench decision of the Apex Court in Ram Kumar's case (2) was not brought to the notice of the Court, therefore, later judgements do not apply. 16. According to the learned counsel for the parties, the question for determination is whether the widow of a `casual labourer with temporary status' is entitled to family pension and whether position in case of `substitute' is different. 17. Shri P.H.Pathak, learned counsel for the petitioner, submits that casual labourer with temporary status is entitled to pension, so would be his widow. S/s.R.M.Vin, Mukesh A.Patel, N.S.Shevade and Ms.Megha Jani, learned counsel for the respondents, submit that casual labourer with temporary status is entitled to pension if absorbed against regular post, and half of the service of the casual labourer after the date of grant of temporary status till the date of his absorption against regular establishment is taken into consideration for calculating the pensionary benefits on absorption in regular establishment. Casual labourer is not appointed against any post, whereas substitute is an employee against post. Petitioners did not hold permanent posts in Railways, remained casual labourers with temporary status till the age of superannuation, hence not entitled to pension, therefore, their widows would not be entitled to family pension. 18. In paragraph 11, the Apex Court in L.Robert D'Souza v The Executive Engineer, Southern Railway and another (AIR 1982 SC 854) said: "It is thus abundantly clear that if a person belonging to the category of casual labour employed in construction work other than work-charged projects renders six months' continuous service without a break, by the operation of statutory rule the person would be treated as temporary railway servant after the expiry of six months of continuous employment. It is equally true of even seasonal labour. Once the person acquired the status of temporary railway servant by operation of law, the conditions of his service would be governed as set out in Chapter XXIII." Then, in paragraph 22, Court further said: "We would be guilty of turning a blind eye to a situation apart from being highly unethical, wholly contrary to constitutional philosophy of socio-economic justice if we fail to point out that Rule 2501 which permits a man serving for 10, 20, 30 years at a stretch without break being treated as daily rated servant, is thoroughly opposed to the notion of socioeconomic justice and it is high time that the Railway administration brings this part of the provision of the Manual, antiquarian and antediluvian, in conformity with the Directive Principles of State Policy as enunciated in Part IV of the Constitution. It may be necessary for a big employer like the railway to employ daily rated workmen but even here it is made distinctly clear that in case of casual labour, the daily wage is fixed by dividing monthly minimum wage by 26 so as to provide a paid holiday. May be, for seasonal employment, or for other intermittent work daily rated workmen may have to be employed. It may as well be that on projects workcharged staff may have to be employed because on the completion of the projects the staff may become surplus. That was at a time when planning and projects were foreign to the Indian economy. Today, Railways perspective plans spreading over decades. If one project is complete another has to be taken over. Railway administration has miles to go and promises to keep and this becomes clear from the fact that the appellant, a daily rated workman, continued to render continuous service for twenty years which would imply that there was work for daily rated workman everyday for twenty years at a stretch without break and yet his status did not improve and continued to be treated as daily rated casual labour whose service can be terminated at the whim and fancy of the local satraps. It is high time that these utterly unfair provisions wholly denying socioeconomic justice are properly modified and brought in conformity with the modern concept of justice and fairplay to the lowest and lowliest in Railway administration." 19. In State of Haryana and others etc. etc. v Piara Singh and others etc. etc. (AIR 1992 SC 2130), the Apex Court said: " So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualification, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell - say two or three years - a presumption may arise that there is regular need for his services. In such a situation it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person." 20. In Yashwant Hari Katkar vs. Union of India and others (1995 AIR SCW 380), the Apex Court in case of a person who was not made permanent even after service of eighteen and half years, said: "It would be travesty of justice if the applicant is denied pensionary benefits simply on the ground that he was not a permanent employee of the Government. The appellant having served the Government for almost two decades, it would be unfair to treat him temporary/quasi-permanent. Keeping in view the facts and circumstances of this case, we hold that the appellant shall be deemed to have become permanent after he served the Government for a long period. The services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits." 21. In Jacob M.Puthuparamboil and others