Case: Union Of India And Ors Vs. Keshab Lal Roy And Ors

mitigate the hardship to the said retrenched employees that a scheme was evolved for providing employment to them. In the letter dated 17th March, 1978 in paragraph 2 it is stated that it has been decided to appoint such employees `as fresh entrants by offering them jobs in the categories for which they are found suitable. A screening committee was set up for the purpose of examining the suitability of these employees. It was clarified that these persons were to be considered for appointment, and not for absorption. Letters of appointment were to be issued only after suitability and medical test and clause V of the letter dated 17th March, 1978 further stipulated that these persons like the respondents were to ``be treated as having been recruited for the first time on the date of their appointment on the Railways as temporary employees. The pay of such employees was to be fixed at the minimum of the relevant revised scales. 8. From the aforesaid letter it clearly follows that the railway authorities did not intend to give any benefit of past service to the newly recruited erstwhile employees of the ASL Railways. It is for this reason that on their selection they were to be regarded as ``appointed and not ``absorbed and their pay was also to be fixed at the minimum of the relevant scales. To put the matter beyond doubt clause-v of the letter clearly mentions that these employees were to be treated as being recruited for the first time ``on the date of their appointment on the Railway as temporary employees. Even though in clause-ix of the said letter dated 17th March, 1978 it was stated that the service of these newly appointed employees will be pensionable, the letter contained no stipulation to the effect that the service rendered by these employees in the erstwhile private company would be taken into consideration for the purpose of paying them pension. 9. Faced with the situation that the terms of appointment did not entitle the respondents to claim the benefit of the past service to be counted for pension, the main emphasis on behalf of the respondents was that they were being discriminated against. In short the submission was that ASL Railways was a privately owned light railway like the K.F. Railways; the erstwhile staff of the K.F. Railways, on their appointment in the Indian Railways, pursuant to the decision taken in this behalf on 4th November, 1969, were allowed their entire past service to be counted for pensionary benefit and this being so, there was no reason as to why the case of the respondents should be dealt with differently. 10. This contention can be best dealt with by referring to letter dated 9th September, 1994 written by the then Minister of Railways to a Member of Parliament a note annexed thereto. It appears that a representation was sent to the Minister on behalf of the respondents herein in which it was contended that the case of the respondents and that of the erstwhile K.F. Railways was similar and, therefore, the respondents should also be granted pensionary benefits counting their past service. Reply dated 9th September, 1994 was sent to the Member of Parliament in which it was stated that a note explaining the position of the case was enclosed. The relevant portion of the said note accompanying the aforesaid letter of the Minister is as follows:- ``Shri K.L. Roy and other have pleaded for grant of pensionary benefits on the analogy of similar dispensation given to staff of Kalighat- Falta Railway (KF) under Mcleod and Company.K.F. Railways was not taken over as a going concern but on the basis of outright purchase of assets without any liability. It was closed down on and from 1.4.1957 and their employees were appointed afresh on ex-gratia grounds. Some of these employees joined Ahmed Katwa, Bankura Damodar River, and Burdwan Katwa Light Railways under same company viz. Mcleod, which were subsequently taken over as a going concern by the Indian Railways with their employees enjoying benefits of their earlier continuous service. A peculiar situation resulted from these changes. While those rendered surplus from K.F. Railways under the control of Mcleod Company and taken as fresh entrants on Indian Railways could not count their past service, those who joined AK, BK, BDR under the same company, on their being taken over, had their past service on Light Railways counted for pensionary benefits. To eliminate this discrimination, it was decided on 4.11.1969 that K.F. Light Railway Staff who were earlier treated as fresh entants, should also be permitted to count their entire service on K.F. Railways for pensionary benefits.It is evident from the above that the cases of employees of K.F. and A.S. Light Railway stand on different footing. 11. The facts stated in the aforesaid note clearly bring out the reason as to why the erstwhile employees of K.F. Railways were given the benefit of counting their past service in the Indian Railways for the purpose of pensionary benefits. This also shows that the respondents and the employees of the erstwhile K.F. Railways were not similarly situated and, therefore, there is no merit in the contention that the respondents had been discriminated. 12. Mrs. Issar then sought to contend that even in the case of ASL Railways there were some employees who had joined other companies which were then taken over by the Indian Railways and the past service of those employees was being counted for pensionary benefits. This contention was not raised before the Tribunal. No facts in this behalf are stated even in the application which was filed before the Tribunal. Had this contention been raised in the application filed before the Tribunal then the appellants herein would have had an opportunity of giving a reply. There has been no adjudication by the Tribunal as to whether the facts so alleged are correct or not. This contention cannot be allowed to be raised in this court for the first time.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It was not in dispute that on their appointment in the Indian Railways the employees of K.F. Railways were given the benefit of their past service and, it was contended, that there was no valid reason as to why the same benefits should not have been extended to the respondents. In short the submission was that all the ex-employees of different private railways were similarly situate and on their appointment in the Eastern Railways the earlier service rendered by them, in the erstwhile private companies should be taken into consideration for the purpose of pension.From the aforesaid letter it clearly follows that the railway authorities did not intend to give any benefit of past service to the newly recruited erstwhile employees of the ASL Railways. It is for this reason that on their selection they were to be regarded as ``appointed and not ``absorbed and their pay was also to be fixed at the minimum of the relevant scales.The facts stated in the aforesaid note clearly bring out the reason as to why the erstwhile employees of K.F. Railways were given the benefit of counting their past service in the Indian Railways for the purpose of pensionary benefits. This also shows that the respondents and the employees of the erstwhile K.F. Railways were not similarly situated and, therefore, there is no merit in the contention that the respondents had beencontention was not raised before the Tribunal. No facts in this behalf are stated even in the application which was filed before the Tribunal. Had this contention been raised in the application filed before the Tribunal then the appellants herein would have had an opportunity of giving a reply. There has been no adjudication by the Tribunal as to whether the facts so alleged are correct or not. This contention cannot be allowed to be raised in this court for the first time.