Union of India & Ors Vs. Keshab Lal
Roy & Ors  INSC 1089 (9 September 1996)
Verma, B.N. Kirpal Kirpal, J.
respondents herein were originally employees of Arrah Sasaram Light Railways
(hereinafter referred to as `ASL Railways') which was owned by a private party.
This company closed down its operation with effect from 15th February, 1978. Termination notices were issued to
the employees including the respondents, and the company paid the termination
benefits as admissible in law.
view to mitigate the hardship to the retrenched employees of the ASL Railways
it was decided that these employees may be appointed as fresh entrants in the
Indian Railways. This decision was contained in the letter dated 17th March, 1978 written by the Ministry of Railways
to the General Manager, Eastern Railways. The said letter contained the terms
and conditions on which these erstwhile employees of ASL Railways were to be
respondents were thereupon appointed in the Eastern Railways pursuant to the
aforesaid decision dated 17th
March, 1978. According
to the prevalent rules at that time an employee in the Indian Railways became
eligible for pensionary benefits only after the employee had put in ten years
of service. The respondents made a representation to the appellants to the
effect that the service rendered by them in the erstwhile ASL Railways should
be taken into consideration for the purpose of granting them pensionary
benefits. This representation was rejected. Thereupon the respondent filed O.A.
No. 113 of 1989 before the Central Administrative Tribunal. Patna Bench, Patna,
praying that then they should be paid pensionary benefits by counting the
entire service or atleast some percentage or some years service rendered by
them in ASL Railways so as to entitle them to get the minimum pension. In
support of this plea the respondents contended that the Railway Board had
allowed counting of previous service rendered by the erstwhile Kalighat-falta
Railway (herein after referred to as 'K.F. Railways') for the purpose of pensionary
benefits. It was submitted that respondent they were being discriminated. The
appellants' contention before the Tribunal was that the status of the
ex-employees of the erstwhile private company, namely, ASL Railways and K.F.
Railways was different. It was submitted that the assets of the K.F. Railways
were taken over by the Government of India by making an outright purchase
whereas ASL Railways had gone into voluntary liquidation and had not been taken
over by the Government of India.
order dated 16th
September, 1993, the
application filed by the respondents was allowed. While noticing that there was
some difference between the status of the K.F. Railways which had been taken
over and status of the employees of the ASL Railways, which was no taken over,
the Tribunal nevertheless held that the employees of ASL Railways had worked
with a private company for long period and, therefore, they should have been
given the same treatment as the employees of the K.F. Railways and other
companies which had been taken over.
the correctness of the aforesaid decision it has been contended by Mr. P.P. Malhotra,
learned senior counsel appearing for the appellants, that the aforesaid letter
dated 17th March, 1978 clearly stated that the appointment
of the respondents was a fresh appointment and their past service could not be
considered for the purpose of pension.
no. 1, appearing in person, and Mrs. Rachna Joshi Issar, learned counsel
appearing on behalf of the other respondents, however, submitted that their
case was similar to the case of employees of the K.F. Railways. 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 tot he respondents. In short the submission was that all the
ex-employees of different ptivate railways were similarly situate and an 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.
Railways belonged to a private party. Voluntarily it closed down its operation
with effect from 19th
February, 1978. During
the arguments it was admitted that the employees of this company, including the
respondents, were paid the provided fund which was due to them by virtue of
their being employees of the said ASL Railways. The Government of India was
under no obligation to provide any employment to the employees like the
respondents. It is only in order to mitigated 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 person 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 Railway as temporary employees. The pay of such employees was to be fixed
at the minimum of the relevant revised scales".
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 for 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
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 submissions was that ASL Railways was a
privately owned light railway like the K.F. Railways: the erstwhile staff of
the K.F. 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 these was no reason as to why the case of the
respondents should be dealt with differently.
contention can be best dealt with by referring to letter dated 9th September, 1994 written by the them Minister of
Railways to a Member of Parliament and 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 by 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 for the
case was enclosed. The relevant portion of the said not accompanying the
aforesaid letter for the Minister is as follows:- Shri K.L. Roy and others 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.
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 a fresh 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 sruplus
form K.F. Railway 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 and BDR under the same their past service on Light Railways
counted for pensionary benefits. To eliminated this discrimination, it was
decided on 4.11.1969 that K.F. Light Railway Staff who were earlier treated as
fresh entrants, should also be permitted to count their entire service on K.F.
Railways for pensionary benefits.
evident from the above that the cases of employees of K.F. and A.S. Light
Railway stand on different footing." The facts stated in the aforesaid
note clearly brings out the reason as to why the ersthile 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
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.
the aforesaid reasons the appeal is allowed. The order of the Tribunal is set
aside and the application filed by the respondents before the Tribunal stands
rejected. The parties to bear their own costs.