Union of India v. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-104

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.07.2009CORAMTHE HON'BLE MR. JUSTICE ELIPE DHARMA RAOandTHE HON'BLE MR. JUSTICE T.S.SIVAGNANAMWRIT PETITION NO. 1832 OF 2007 ANDM.P.NO.1 OF 20071. 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.vs1. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-104. 2. A.Govindasamy. ... Respondents. Prayer:- Writ petition under Article 226 of the Constitution of Indiapraying for the issuance of writ of certiorari for the relief asstated 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 theissuance of a writ of certiorari to call for and quash the recordsrelating to the order made in O.A.No.219 of 2006 on the file of theCentral Administrative Tribunal, Madras Bench. https://hcservices.ecourts.gov.in/hcservices/

2. The applicant, who joined the service of the SouthernRailway as Fitter Grade II Casual Labour in the Signal Department,Egmore, on 13.07.1970, worked in the said Department during threespells, viz., from 13.07.1970 to 31.12.1970, 01.01.1971 to 31.08.1971and from 01.09.1971 to 31.10.1971 except for the short break of twodays in the year 1971. According to him, he was promoted as FitterGrade II Casual Labour in the same Department on 30.06.1979 till hewas absorbed and appointed directly on 24.09.1980. Thereafter, heretired from service only on 30.04.2005. The petitioners herein havereckoned the services of the 2nd respondent herein only from25.09.1980 for the purpose of calculating the period of service andthey have not taken into account the services of the 2nd respondentrendered as casual labour from 03.12.1971 to 24.09.1980. Hence, the2nd respondent filed O.A.No.219 of 2006 praying for a direction to therespondents therein to pass revised orders by including the periodfrom 03.12.1971 to 24.09.1980 as period of qualifying servicerendered by him in the service register and to grant all terminalbenefits due for that period.3. The respondents therein have filed a reply statement statingthat there are no records to verify the genuineness of the Cardsubmitted by the applicant and that the continuous service renderedby the applicant can only be a Project casual service, whichcommenced only from 01.01.1981. It is further stated that theapplicant moved out of the Project casual service from the SignalDepartment and was appointed in the Mechanical Department as DieselKhalasi not on the basis of the service rendered by him as casuallabourer and it was a regular appointment in a different department.According to the respondents therein, the service rendered by theapplicant 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 thepurpose of computation of pension and hence, the applicant is noteligible for inclusion of his daily rated casual service of 8 yearsand 9 months as contended by him.4. The Tribunal, after hearing both the parties and consideringthe facts and circumstances of the case, disposed of the originalapplication with a direction to the respondents therein to pass arevised Pension Payment Order by counting the period of servicerendered by the applicant from 03.12.1971 to 24.09.1980 as qualifyingservice for the purpose of computation of pension and grant allbenefits as admissible to him within a period of three months fromthe date of receipt of a copy of that order.5. Aggrieved of the aforesaid order passed by the Tribunal, thepetitioners have filed the present writ petition with the aboveprayer.6. Heard the learned counsel for the petitioner and perused thematerials 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 renderedby the 2nd respondent herein as a casual labour from 1970 and as aFitter Grade II Casual Labour in the year 1979 attracted Rule 31 ofthe Railway Services (Pension) Rules, 1993, which enables counting ofservice of a Railway servant paid from contingencies.. The Tribunalfurther held that as per the letter of the Railway Board dated11.09.1986, the 2nd respondent is also entitled for 50% of theservices rendered prior to regularisation, which is to be calculatedtaking into consideration for pensionary benefits. In the replyaffidavit filed before the Tribunal, the respondents therein, exceptextracting Section 31 of the Railway Services (Pension) Rules andrelying on the judgment of the Hon'ble Supreme Court reported inUnion of India -vs- K.G.Radhakrishna Panickar {1998 Supreme CourtCases (L&S) 1281) in support of their contention that the servicerendered as Project Casual Labour by employees, who were absorbed onregular permanent/temporary posts prior to 01.01.1981, should not becounted for the purpose of retiral benefits, they have not producedany evidence to establish that the applicant's service is only aproject casual labour service. Furthermore, as seen from the replyaffidavit filed in the original application, it is stated thatinitially the applicant/2nd respondent herein was appointedtemporarily as Diesel Kalasi in the scale of pay of Rs.196-232 on25.09.1980 and thereafter was promoted as Kalasi Helper with effectfrom 18.03.1981 and after passing the trade test for the post ofFitter Diesel Mechanic, he was promoted as Diesel Fitter Grade III inthe scale of pay of Rs.950-1500 with effect from 25.06.1987. It isfurther stated that the 2nd respondent herein was further promoted asDiesel Fitter Grade II in scale of pay of Rs.1200-1800 on 05.07.1993and as per the recommendations of the V Pay Commission, his scale wasfixed at Rs.4000-6000 with effect from 01.01.1996. Further, he waspromoted as Technician I Diesal Fitter in the scale of pay ofRs.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 thathe was worked as a Casual Labour from 13.07.1970 to 31.01.1971 andfrom 03.12.1971 to 30.06.1979 by submitting Casual Labour ServiceCard, it is stated in the reply affidavit that the said servicerendered by the 2nd respondent is not a qualifying service in terms ofRule 14(ii) of the Railway Services (Pension) Rules, 1993 andfurther, the services rendered by the 2nd respondent herein is only aProject Casual Labour service and the very fact that he was engagedas a Project Casual Labour can be evidenced from the Casual LabourService Card produced by him as per Annexure A-1 to A-3. Whereas, inparagraph No.20 of the reply affidavit, it is stated that there is noprovision of counting Project Casual Labour service rendered inSignal Department (Projects) as a qualifying service, since countingof Project Casual Labour service come into effect only from01.01.1981 and there are no records available to verify thegenuineness of the service card submitted by the 2nd respondent hereinwhether 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 inservice and assuming but not admitting that the applicant is a CasualLabour, it is only a Project Casual Labour service and the 2ndrespondent is eligible for confirmation of temporary status witheffect from 01.01.1981.8. So, from a reading of the above, it is seen that there is aninconsistent statement with regard to the service rendered by theapplicant as a Casual Labour. One hand, the petitioners haveaccepted the service card and subsequently, they have denied thegenuineness of the same on the ground of non availability of records.When the 2nd respondent herein has produced an evidence to satisfy hisservice as a Casual Labour, the burden lies on the Department torebut the said evidence produced by the 2nd respondent. In theabsence of any such evidence adduced by the petitioners, it could bepresumed that the evidence adduced by the applicant is admissible.On that ground also, apart from the other reasons given by theTribunal, the order passed by the Tribunal is sustainable in law. 9. In view of the above, the writ petition fails and the sameis dismissed. Connected M.P. is closed. However, there will be noorder as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarbs/ ToThe 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