CIVIL WRIT JURISDICTION CASE No.265 OF 2008 ( In the matter of an application under Article 226 of the Constitution of India) 1. THE UNION OF INDIA through GMEC Railway, Hajipur 2. The Divisional Railway Manager, E C Railway, Sonepur 3. The Divisional Personnel Officer, E C Railway, Sonepur 4. Divisional Financial Manager, E C Railway, Sonepur 5. The Divisional Superintendent (O), now Divisional Personnel Officer E C Railway, Samastipur 6. Sr. D E N, E C Railway, Samastipur …(Respondents)- Petitioners Versus KAPOOR CHAND son of late Bijali Sharma, at and P O Angarghat, PS Ujiyarpur, District Samastipur, Ex- Carpenter Grade –I, E C Railway, under Inspector of Works, Khagaria …(Petitioner)- Respondent ******* For the Petitioners : Mr.Ahsanuddin Amanullah For the Respondent : Mr. M P Dixit ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar & Kishore K Mandal, J. J. This writ petition is directed against the order dated 4.8.2006, passed by the Central Administrative Tribunal, Patna Bench, Patna, in OA No.106 of 2005 (Annexure 2), whereby the original application preferred by the present respondent has been allowed, and the Railway Administration has been directed that the period spent by the respondent herein as a daily wage employee shall count for the purpose of computation of his post- retirement benefits. The applicant set up his case before the Tribunal that he had worked as a casual labour on daily wages from 10.4.1965 till 30.8.1977. His services were regularized as Carpenter with effect from 31.8.77, and was given the appropriate pay scale. He was given the next higher pay scale on 29.12.96, and was further promoted on 1.3.93. He superannuated on 31.1.2004. He raised a grievance before the Tribunal that the Railway Administration was counting his service from 31.8.77 to 31.1.2004, as a result of which he has been deprived of his full pension. He contended that half of the period spent from 10.4.1965 to 30.8.1977, should 2 count for the purpose of computation of his post-retirement benefits. The Railway Administration stated before the Tribunal that the applicant, on his own showing, had worked as casual worker on daily wages intermittently from 10.4.65 to 30.8.77, and was never engaged continuously as a casual labour. It was also stated on behalf of the Railway Administration before the Tribunal that the original applicant had never completed 120 days as casual labour in which event he would be entitled to count half of the period. On a consideration of the materials on record, the Tribunal has allowed the application. 2. Learned counsel for the petitioners has assailed the validity of the impugned order on various counts. He submits that, on the own showing of the original applicant, he is not entitled to count half of the period for purpose of computation of post-retirement benefits. He has placed before us the relevant Rules. He also submits that two decisions cited by learned counsel for the respondent herein stand on fundamentally different footing deciding different issues. 3. Learned counsel for the respondent has supported the impugned order. He submits that in view of the following judgments of this Court, he is entitled to count half of the period for purpose of computation of post-retirement benefits :- (i) Division Bench judgment of the Andhra Pradesh High Court in WP No.10837 of 2001 (General Manager, South Central Railway vs. Sk. Abdul Khader [2004(2) Administrative Total Judgments, page 23]. (Against the judgment of the Andhra Pradesh High Court SLP preferred by the Union of India was withdrawn. The Supreme Court declined to interfere with the judgment of the Andhra Pradesh High Court.) (ii) Order dated 12.12.2007 passed by a Division Bench of this Court in CWJC No.9604 of 2006 (Union of India vs. Central Administrative Tribunal). (iii) A Division Bench judgment of this Court passed on 18.9.2008 in CWJC No. 13600 of 2008 (Union of India v. Deg Lal) (iv) Order dated 16.10.2008 passed by a Division Bench of this Court in CWJC No. 1144 of 2006 (Union of India vs. Bhutta Rai). 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the Tribunal has fallen in the error in proceeding on the footing of “admitted position” which does not seem to be the position. The Tribunal ought to have examined the factual aspect of the matter in detail. It appears on the basis of the materials placed before us that 3 the petitioner had worked intermittently as a Carpenter on daily wages. Two charts placed by the original applicant before the Tribunal form part of the present record also. It is evident on a perusal of the same that the original applicant had worked for broken periods. There is also no material on record to show that he had worked continuously for 120 days. Learned counsel for the petitioner has rightly relied on rule 14 (i) and (ii), and rule 31 of the Railway Services (Pension) Rules 1993, which are applicable to the facts and circumstances of the present case:- “14. Priods which shall not be treated as service for pensionary benefits.- Periods of employment in any of the following capacities shall not constitute service for pensionary benefits, namely,- (i) in a part-time capacity; (ii) at casual market or daily rates; ……….. …………….. …………. “31. Counting of service paid from Contingencies._ In respect of a railway servant, in service on or after the 22nd day of August, 1968, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment, subject to the following conditions namely :- (a) the service paid from contingencies has been in a job involving whole-time employment; (b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned such as posts of malis, chowkidars and khalasis; © the service should have been such for which payment has been made either or monthly rate basis or on daily rates computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, borne some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments; (d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break; 5. In view of the factual position emerging from our discussion hereinabove, it is evident that the respondent herein is not entitled to count the period from 10.4.1965 to 30.8.1977. As to the judgment of the Andhra Pradesh High Court, it appears to us that the same seemingly appears to support the case of the original applicant but on a deeper scrutiny reveals that the facts and circumstances of that case were quite different. That was a case where the period spent as a casual labour was followed by temporary status, and thereafter the 4 employee was regularized. Therefore, the question for consideration before the Andhra Pradesh High Court was, whether or not the temporary period shall count for the purposes of full pension. This question was answered in favour of the employee. The Patna High Court in the aforesaid three orders followed the judgment of the Andhra Pradesh High Court. The orders of this Court are very short, disposing of the cases at the stage of admission, and do not state facts elaborately. 6. In the result, we do not agree with the impugned order of the Tribunal. The writ petition is allowed. It is held that the period from 10.4.1965 to 30.8.1977 shall not enure to the benefit of the original applicant for purposes of computation of his post-retirement benefits. ( S K Katriar ) ( Kishore K Mandal ) Patna High Court, Patna The 23rd of February 2010 NAFR/ mrl