IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.07.2009 CORAM THE HON'BLE MR. JUSTICE ELIPE DHARMA RAO and THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM WRIT PETITION NO. 1832 OF 2007 AND M.P.NO.1 OF 2007 1. Union of India rep. by the Chief Personnel Officer, Personnel Branch, Southern Railway, Chennai-3. 2. The Senior Divisional Personnel Officer, Personnel Branch, Madras Division, Southern Railway, Chennai-3. ... Petitioner. vs 1. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-104. 2. A.Govindasamy. ... Respondents. Prayer:- Writ petition under Article 226 of the Constitution of India praying for the issuance of writ of certiorari for the relief as stated therein. For Petitioners : Mr.V.G.Suresh Kumar For Respondents : R-1 Tribunal. No appearance for R2. O R D E R (Order of the Court was made by ELIPE DHARMA RAO,J.) The petitioners have filed the present writ petition for the issuance of a writ of certiorari to call for and quash the records relating to the order made in O.A.No.219 of 2006 on the file of the Central Administrative Tribunal, Madras Bench. https://hcservices.ecourts.gov.in/hcservices/ 2. The applicant, who joined the service of the Southern Railway as Fitter Grade II Casual Labour in the Signal Department, Egmore, on 13.07.1970, worked in the said Department during three spells, viz., from 13.07.1970 to 31.12.1970, 01.01.1971 to 31.08.1971 and from 01.09.1971 to 31.10.1971 except for the short break of two days in the year 1971. According to him, he was promoted as Fitter Grade II Casual Labour in the same Department on 30.06.1979 till he was absorbed and appointed directly on 24.09.1980. Thereafter, he retired from service only on 30.04.2005. The petitioners herein have reckoned the services of the 2nd respondent herein only from 25.09.1980 for the purpose of calculating the period of service and they have not taken into account the services of the 2nd respondent rendered as casual labour from 03.12.1971 to 24.09.1980. Hence, the 2nd respondent filed O.A.No.219 of 2006 praying for a direction to the respondents therein to pass revised orders by including the period from 03.12.1971 to 24.09.1980 as period of qualifying service rendered by him in the service register and to grant all terminal benefits due for that period. 3. The respondents therein have filed a reply statement stating that there are no records to verify the genuineness of the Card submitted by the applicant and that the continuous service rendered by the applicant can only be a Project casual service, which commenced only from 01.01.1981. It is further stated that the applicant moved out of the Project casual service from the Signal Department and was appointed in the Mechanical Department as Diesel Khalasi not on the basis of the service rendered by him as casual labourer and it was a regular appointment in a different department. According to the respondents therein, the service rendered by the applicant in the Mechanical Department from 25.09.1980 to 13.04.2005, which works out to 24.5 years, only was taken into account for the purpose of computation of pension and hence, the applicant is not eligible for inclusion of his daily rated casual service of 8 years and 9 months as contended by him. 4. The Tribunal, after hearing both the parties and considering the facts and circumstances of the case, disposed of the original application with a direction to the respondents therein to pass a revised Pension Payment Order by counting the period of service rendered by the applicant from 03.12.1971 to 24.09.1980 as qualifying service for the purpose of computation of pension and grant all benefits as admissible to him within a period of three months from the date of receipt of a copy of that order. 5. Aggrieved of the aforesaid order passed by the Tribunal, the petitioners have filed the present writ petition with the above prayer. 6. Heard the learned counsel for the petitioner and perused the materials placed on record. https://hcservices.ecourts.gov.in/hcservices/ 7. On going through the materials, it is seen that the Tribunal, after going through the matter, satisfied that the services rendered by the 2nd respondent herein as a casual labour from 1970 and as a Fitter Grade II Casual Labour in the year 1979 attracted Rule 31 of the Railway Services (Pension) Rules, 1993, which enables counting of service of a Railway servant paid from contingencies.. The Tribunal further held that as per the letter of the Railway Board dated 11.09.1986, the 2nd respondent is also entitled for 50% of the services rendered prior to regularisation, which is to be calculated taking into consideration for pensionary benefits. In the reply affidavit filed before the Tribunal, the respondents therein, except extracting Section 31 of the Railway Services (Pension) Rules and relying on the judgment of the Hon'ble Supreme Court reported in Union of India -vs- K.G.Radhakrishna Panickar {1998 Supreme Court Cases (L&S) 1281) in support of their contention that the service rendered as Project Casual Labour by employees, who were absorbed on regular permanent/temporary posts prior to 01.01.1981, should not be counted for the purpose of retiral benefits, they have not produced any evidence to establish that the applicant's service is only a project casual labour service. Furthermore, as seen from the reply affidavit filed in the original application, it is stated that initially the applicant/2nd respondent herein was appointed temporarily as Diesel Kalasi in the scale of pay of Rs.196-232 on 25.09.1980 and thereafter was promoted as Kalasi Helper with effect from 18.03.1981 and after passing the trade test for the post of Fitter Diesel Mechanic, he was promoted as Diesel Fitter Grade III in the scale of pay of Rs.950-1500 with effect from 25.06.1987. It is further stated that the 2nd respondent herein was further promoted as Diesel Fitter Grade II in scale of pay of Rs.1200-1800 on 05.07.1993 and as per the recommendations of the V Pay Commission, his scale was fixed at Rs.4000-6000 with effect from 01.01.1996. Further, he was promoted as Technician I Diesal Fitter in the scale of pay of Rs.4500-7000 on 03.07.20003 and retired from service on 30.04.2005. The averment made by the 2nd respondent with regard to the fact that he was worked as a Casual Labour from 13.07.1970 to 31.01.1971 and from 03.12.1971 to 30.06.1979 by submitting Casual Labour Service Card, it is stated in the reply affidavit that the said service rendered by the 2nd respondent is not a qualifying service in terms of Rule 14(ii) of the Railway Services (Pension) Rules, 1993 and further, the services rendered by the 2nd respondent herein is only a Project Casual Labour service and the very fact that he was engaged as a Project Casual Labour can be evidenced from the Casual Labour Service Card produced by him as per Annexure A-1 to A-3. Whereas, in paragraph No.20 of the reply affidavit, it is stated that there is no provision of counting Project Casual Labour service rendered in Signal Department (Projects) as a qualifying service, since counting of Project Casual Labour service come into effect only from 01.01.1981 and there are no records available to verify the genuineness of the service card submitted by the 2nd respondent herein whether he actually rendered service as a Casual Labour and the 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent never represented against such inclusion while he was in service and assuming but not admitting that the applicant is a Casual Labour, it is only a Project Casual Labour service and the 2nd respondent is eligible for confirmation of temporary status with effect from 01.01.1981. 8. So, from a reading of the above, it is seen that there is an inconsistent statement with regard to the service rendered by the applicant as a Casual Labour. One hand, the petitioners have accepted the service card and subsequently, they have denied the genuineness of the same on the ground of non availability of records. When the 2nd respondent herein has produced an evidence to satisfy his service as a Casual Labour, the burden lies on the Department to rebut the said evidence produced by the 2nd respondent. In the absence of any such evidence adduced by the petitioners, it could be presumed that the evidence adduced by the applicant is admissible. On that ground also, apart from the other reasons given by the Tribunal, the order passed by the Tribunal is sustainable in law. 9. In view of the above, the writ petition fails and the same is dismissed. Connected M.P. is closed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar bs/ To The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-104. 1 cc To Mr.V.G.Sureshkumar, Advocate, SR.35017. W.P.No. 1832 of 2007 KS(CO) RVL 07.08.2009 https://hcservices.ecourts.gov.in/hcservices/