Union of India & Ors Vs. K. G. Radhakrishana
Panickar & Ors [1998] INSC 248 (28 April 1998)
S.C.
Agarwal, S. Saghir Ahmad, M. Srinivasan S. C. Agrawal,
ACT:
HEAD NOTE:
WITH CIVIL APPEAL NOS. 3973/94, 5531/94, 9241/94, 4569/97, 570/97, 4571/97,
4572/97, 4573/97, 4574/97, CIVIL APPEAL NOS.
............................................. OF 1998 {arising out of SPECIAL
LEAVE PETITIONS (C) NOS. 2595/94, 13416/94, 4335/94, 8053/95, 17197/95,
17198/95, 22691/95, 2790/95, 27483/95, 3423/95, 12061/97 379/98} Civil Appeal
Nos. 2 47 9/98, 2480/98, 2473/98, 2474/98, 475/98, 2478/98, 2476/98, 2472/98,
2477/98, 2481/98, 882/98, and 2483/98.
Special
leave granted in the Special Leave Petitions.
These
appeals rais the question whether employees who were initially engaged as
project Casual Labour by the hilway Administration and were subsequently
absorbed on a regular temporary/permanent post are entitled to have the
services rendered as Project Casual Labour prior to 1.1.1981 counted as part of
qualifying service for the purpose of pension and other retiral benefits.
In
sub-para (a) of Para 2501 of the Indian Railway
Establishment Manual [hereinafter referred to as 'the Manual'], as it stood at
the relevant time, the expression 'Casual Labour' was defined in these terms :-
" Casual labour refers to labour whose employment is seasonal,
intermittent, sporadic or extends over short periods. Labour of this kind is
normally recruited from the nearest available source. It is not liable to
transfer, and the conditions applicable to permanent and temporary staff do not
apply to such labour." In sub-para (b) of Para 2501 of the Manual casual labour
wad divided into three categories, namely, (i) staff paid from contingencies
except those retained for more than six months continuously, known as Open
Casual Labour; (ii) labour on projects, irrespective of duration, known as
Project Casual Labour; and (iii) seasonal labour who are sanctioned for
specific works of less than six months duration. Persons falling in category (i)
who continued to do the same work or other work of the same type for more than
six months without a break were to be treated as temporary after the expiry of
the period of six months of continuous employment. The said period of six
months was subsequently reduced to 120 days. Since the period of service of
such casual about, after their attaining temporary status on completion of 120
days of continuous service, was not counted a qualifying service for pensionary
benefits and there was a demand for counting of that period of service for that
purpose, the Railway Board, by order dated October 14, 1980, took the following
decision :- Is a result of representations from the recognised labour unions
and certain other quarters, the Ministry of Railways had been considering the
demand that the period of service in the case of casual labour (i.e. other than
casual labour employed on projects) after their attainment of temporary status
on completion of 120 days continuous service, should be counted as qualifying
service for pensionary benefits if the same is followed by their absorption in
service as regular railway employees. The matter has been considered in detail
in consultation with the Ministry of Home. Affairs (Deptt. of personnel and
Administrative Reforms) and the Ministry of Finance. Keeping in view the fact
that the aforesaid category of employees on their containment of temporary
status in practice enjoy more privileges as admissible to temporary employes
such as they are paid in regular scales of pay and also earn erements, contribite
to P.F. etc.
the
Ministry of Railway have decided, with the coroval of the president, that the
benefit of such service rendered by them as temporary employee; before they are
regularly appointed should be conceded to them as provided in the Ministry of
Finance O.M. No. F12 (1) - EV/768 dated 14th May, 1968.
(copy
enclosed for ready reference).
The
concession of counting half of the above service as qualifying for pensionary
benefits, as per the O.M. of 14th May, 1968
would be made applicable to casual labour on the railways who have attained
temporary status. The weightage for the past service would be limited from
1.1.1961 in terms of conditions of the O.M. ibid, past cases of retirements
before the date of this letter will not be re- opened.
2.
Daily rated casual labour or labour employed on projects will not however, be
brought under the purview of the aforesaid orders." Project Casual Labour were
left out from the ambit of this order because there was no provision for grant
of temporary status to project Casual Labour. Project Casual labour had
grievance that, though very large in number, they had no security of service
and no protection whatsoever. The said grievance of the project Casual labour
was raised before this Court in Writ Petitions No.s 147, 320-69, 459,4335 of
1985 etc. filed under Article 32 of the Constitution. During the pendency of
the said writ petitions before this Court, the Railway Ministry framed a scheme
making provision for grant of temporary status to project Casual Labour on
completion of 360 days of continuous service. The said scheme provided as
follows:- " 1.1 As a result of such deliberations, the Ministry of
Railways have now decided in principle that casual labour employed on projects
(also know as 'project casual labour ) may be treated as temporary on
completion of 360 days of continuous employment. The Ministry have decided
further as under:
a)
These orders will cover :
)
Casual labour on projects who are in service as on 1.1.87; and ) Casual labour
on projects who, thought not in service on 1.1.84, had been in service on
Railways ealier and had already completed the above prescribed period (360
days) of continuous employment or will complete the said prescribed period of
continuous employment on reangament in future. ( A detailed letter regarding
this group follows).
b) The
decision should be implemented in phases according to the schedule given below
:- ------------------------------------------------------------ Lenght of
service Date from which Date by which ie. continous may be treated decision
should employment). as temporary be implemented
------------------------------------------------------------ i) Those who have
completed 1.1.1984 31.12.1984 five years of service as on 1.1.84 (ii) Those who
have comple- 1.1.1985 31.12.1985 ted three years but less than years of service
as on 1.1.1984 (iii) Those who have compl- 1.1.1986 31.12.1986 ted 360 days but
less than three years of service on 1.1.1984 (iv) Those who have compl-
1.1.1987 or 31.12.1987 360 days after 1.1.1984 or the date on which 360 days
are completed whichever is later.
------------------------------------------------------------
By the judgment dated April
18, 1995 in Inder Pal Yadav
& Ors. Etc. v. Union of India & Ors. Etc., 1985 (3)
SCR 837, this Court approved the said scheme but modified the date 1.1.1984 in para
5.1 (a) (i) to 1.1.1981 and as a result there was consequent re-scheduling in
absorption from that date onwards. The Court, while accepting the scheme with
the modification gave direction that it must be implemented by re-casting the
stages consistent with the change in the date is directed. As per the aforesaid
scheme temporary status was conferred on Project Casual labour with effect from
the dates specified therein and on the basis of such temporary status they were
also extended the benefit of the order dated October 14, 1980 and the temporary
service after attaining the temporary status was counted for pension and other retiral
benefits.
In
Civil Appeal No. 4643 of 1992, which has arisen out of O.A. No. 485 of 1989
filed before the Madras Bench the Central Administrative Tribunal [hereinafter
referred to as 'the Tribunal'], the respondents joins as project Casual Labour
in the Southern Railway, madras on different dates during the period 1954 to
1973. They were all employed in construction works and were project Casual labour.
They were regularly absorbed in Class IV service on various dates from 1962 to
1982. They had put in 9 to 14 years of service as casual labour before they were
so absorbed. Most of them were absorbed in 1981. Their plea was that after six
months of continuous service as caused labour they were atentitled to be
treated as 'temporary railway employees' and the entire perior of their service
a casual labour should be counted for the purpose of retiral benefits. The said
claim of the respondents was not accepted by the Railway Administration which
held that service as casual labour prior to 1.1.1981 could not be counted for penslonary
benefits. Feeling aggrieved by the said decision of the Railway Administration,
they filed O.A. No. 485 of 1989 which was allowed by the Tribunal by judgment
dated February 8, 1991. Before the Tribunal it was
contended that the respondents having continuously worked as casual labour without
any break followed by regularisation their entire service as casual labour
should be counted for the purpose of retiral benefits and that in any event at
least half of their service as casual labour after the initial period of six
months should be taken into account as qualifying service for retiral benefits.
It was also urged that while granting retiral benefits not only the open Line
Casual Labour but also project Casual Labour who had joined later than the
respondents and had acquired temporary status after 1.1.1981 have been given pensionary
benefit bu the denial of similar benefit to the respondents amounted to illegal
discrimination and was violative of the provisions of Article 14 of the
Constitution. By its judgment dated February 8, 1991 the Tribunal has accepted
the said contention of the respondents and has held that unfair treatment would
be meted out to the respondents if the entire period of their continuous
service as casual labour is ignored for the purpose of retiral benefits whereas
such service is taken into account in respect of the later entrants. Reliance
was placed on the decision of this Court in D. S. Nakara v. Union of India,
1983 (2) SCR 165. It was observed that even on the basis of the instructions
issued in 1984 and 1986 persons who had acquired temporary status in the past
in 1981 could be given such a status retrospectively and there was no reason
why same conceptual benefits could not be given such a status retrospectively
and there was no reason why same conceptual benefits could not be given to the
respondents also provided they satisfied the same condition of continuous
service. The said judgment of the Tribunal has been followed by other Benches
of the Tribunal in subsequent Judgments. Civil Appeals Nos.4643/92, 3974/94,
5531/94, 9241/94, 4569-74/97 and Civil appeals arising out of Special Leave
Petitions (C) No.s 2595/94, 13416/94, 14335/94, 8053/94, 17197/95, 17198/95,
27483/95, 12001/97 and 379/97 have been filed by the Railway Administration
against the said judgments of the Tribunal.
In its
judgment dated November 30, 1994 in O.A. No. 456 of 1993 the Madras Bench of
the Tribunal has taken a view different from that taken in the judgment dated
February 8, 1991 in O.A. No. 485 of 1989. In that case the petitioners were
employed as Casual Labourers in construction work in Southern Railway on
different dates during the period from 1955 to 1974 and were absorbed on
regular posts on different dates between 1962 and 1983 and their service as
casual labour was not taken into account for the purpose of retiral benefits.
The Tribunal, while dismissing the said application, held that in view of the
scheme which was approved by this Court in Inder Pal Yadav temporary status
could be granted to Project Casual labour only from 1.1.1981 or from the date
on which 360 days of service as project Casual Labour was completed after
1.1.1981 whichever was later and project Casual labour who had already been regularised
prior to 1.1.1981 could not be granted any deemed date for grant of temporary
status. The earlier judgment of the Tribunal dated February 8, 1991 in O.A. No. 485 of 1989 was held as having been given per incurium.
The same view was taken by the Madras Bench of the Tribunal in judgment dated
August 22, 1996 in O.A. No. 885 of 1996.
Civil
Appeals arising out of Special Leave Petitions (c) Nos. 26790/95 and 3423/97
have been filed by the petitioners in O.A. Nos. 456/93 and 885/93 against the
said judgments of the Tribunal dated November 30, 1994 and August 22, 1996.
At the
out set, it may stated that in the railways a distinction has been made between
'temporary status' and 'temporary employment'. Open Line Casual Labours who
were treated temporary after the expiry of six months of continuous employment
under para 2501(b) (i) of the Manual were only entitled to the rights and
privileges admissible to temporary railway servants as laid down in Chapter
XXIII of the Manual. But such temporary status did not entitle the casual labour
to the benefit of the period of of service rendered after attaining temporary
status being treated as qualifying service for the purpose of retiral benefits.
For the purpose of computing the qualifying service for retiral benefits the
service after absorption on a regular temporary/permanent post after requisite
selection only could be taken into consideration. Provision in this regard was
contained in para 2511 of the Manual which provided as follows:- 2511. Rights
and Privileges admissible to Casual Labour who are treated as temporary after
completion of six months' continuous service :- (a) Casual labour treated as
temporary are entitled to all the rights and privileges admissible to temporary
railways servants as laid down in Chapter XXIII of the Indian Railways
Establishment manual. the rights and privileges admissible to such labour also
include the benefits of the Discipline and Appeal Rules. Their service, prior
to the date of completion of six months' continuous service will not, however,
count for any purposes like reckoning of retirement benefits, seniority etc.
such
casual labourers will, also, be allowed to carry forward the leave at their
credit to the new post on absorption in regular service.
(b)
Such casual labour who acquire temporary status, will not, however, be brought
on to the permanent establishment unless they are selected through regular
Selection Boards for Class IV staff. They will have a prior claim over others
to permanent recruitment and they will be considered for regular employment
without having to go through employment exchanges. Such of them who join as
Casual Labourers before attaining the age of 25 years may be allowed relaxation
of he maximum age limit prescribed for Class IV posts to the extent of their
total service which may be either continuous or in broken periods.
(c) It
is not necessary to create temporary posts to accommodate casual labourers who
acquire temporary status for the conferment of attendant benefits like regular
scales of pay, increments etc.
Service
prior to absorption against a regular temporary/permanent post after requisite
selection will, however, not constitute as qualifying service for pensionary
benefits.
NOTE:
- In case where casual labour had actually been brought over to the regular
prescribed/authorised scales of pay prior to 22nd August, 1962 on fulfilling
the requisite conditions, the periods during which they drew pay in the regular
scales be taken into account of the purpose of granting increments, even if
they cannot be shown against regular posts prior to 22nd August, 1962.:
[emphasis supplied] The period of service rendered after attainment of
temporary status but before absorption on regular temporary/permanent post was
taken into account for the purpose of pensionary benefits for the first time by
order dated October 14, 1980 whereby half of the period of service after
attaining of temporary status was to be counted for the purpose of qualifying
service for pensionary benefits.
Under
Para 2501 (b)(i) of the Manual the benefit of temporary status was available to
Open Line Casual labour only and it was not available to Project Casual Labour
till the decision of this Court in Inder Pal Yadav whereby the scheme for grant
of temporary status to Project Casual Labour was approved under the scheme
temporary status was given from 1.1.1981 to those who had completed five years
service as Project Casual labour as on 1.1.1981, those who had completed three
years service as Project Casual Labour as on 1.1.1981 were given the temporary
status from 1.1.1982, those who had completed 360 days but less than three
years of service as Project Casual Labour as on 1.1.1981 were given temporary
status from 1.1.1983 and those who completed 360 days as Project Casual Labour
after 1.1.1981 were given the temporary status from 1.1.1984 or on the date on
which 360 days are completed whichever is later.
Project
Casual Labour could claim the benefit of the order dated October 14, 1980 only
after they could be treated as temporary as per the scheme accepted by this
Court in case Inder Pal Yadav. The respondents in the appeals filed by the
Railway Administration and the appellants in the other two appeals were
employed as Project Casual Labour. They never obtained temporary status prior
to their absorption on regular temporary/permanent post on the basis of the
scheme that was approved in Inder Pal Yadav and, therefore, no part of their
service as project Casual Labour has been counted as qualifying service for the
purpose of pensionary benefits. Their service as Project Casual Labour Prior to
1.1.1981 could not be treated as qualifying service for the purpose of retiral
benefits because under the scheme they could not be treated to have attained
temporary status prior to 1.1.1981.
If Ram
Kumar & Ors. v. Union of India & Ors. 1988 (2) SCR
138, the petitioners were engaged on terms of casual labour for periods varying
between 10 to 16 years in the Construction Department of the Signal Unit in the
Northern Railway. They had not been treated as temporary servants and they
approached this Court by filling writ petitions under Article 32 of the
Constitution wherein their grievance was that the Railway Administration had
applied discriminatory rates of wiges and they prayed for a direction to treat
them at par with maintenance workers and also sought absorption in the regular
cadre in the permanent category. This Court, while rejecting the submission
urge on behalf of the petitioners that they should be treated at par with Open
Line Casual Labours, observed:- " Admittedly the petitioners have put in
more than 360 days of service. Though munsel for the petitioners had pointed
out that the Administration was requiring continuous service for purpose of
eligibility, learned Additional Solicitor General on constructions obtained
from the Railway Officers present in Court during arguments had clarified that
continuity is not insisted upon and though there is break in such continuity
the previous service is also taken into account. learned Additional licitor
General has made a categorical statement before us that once temporary status
is acquired, casual employees of both categories stand at par. Keeping the pevailing
practice in the Railway in view, it is difficult for us to obliterate the
function between the two categories of employees till temporary status is
acquired." [p. 141] It was further stated:- " It is stand of the
learned Additional Solicitor General that no pensionary benefits are admissible
even to temporary railway servants and, therefore, that retiral advantage is
not available to casual labour acquiring temporary status. We have been shown
the different orders and directions issued by the Administration. We agree with
the learned Additional solicitor General that retiral benefit of pension is not
admissible to either category of employees." [ p. 144] Ms. Chandan Ramamurthi,
the learned counsel for the appellants in Civil Appeal arising out of special
Leave Petition (c) No. 2679 of 1995, has submitted that before the decision for
this Court in Inder Pal Yadav project Casual Labour were treated as temporary
after completion of 120 days but after the approval of the scheme in Inder Pal Yadav
they became entitled to be treated as temporary on the completion of 360 days
continuous employment and she has invited our attention to the following
passage in Ram Kumar:- earned Additional Solicitor General states that
petitioners are project employees and do not belong to the open line. According
to him employees in the open line acquire temporary status on completion of 120
days of service as against 180 days which was the previous requirement. That
status is acquired on completion of 360 days by casual labour in project works
as provided in the scheme formulated under orders of this Court, though such status
were acquirable by project casual labourers & completion of 180 days of
continuous employment previously." [ p. 141] In our opinion , this
submission of the learned counsel is not based on a correct reading of the
judgment if Ram Kumar. In the aforequoted passage the Court has taken into of
the distinction between open the Casual Labour and Project Casual labour in the
matter of grant of temporary status and has pointed out that Open Line Casual Labours
acquire temporary status on completion of 120 days continuous service and
earlier the said requirement was 180 days, but such status is acquired on
completion of 360 days by casual labour in project works. The submission that
prior to the acceptance of the Scheme by this Court in Inder Pal Yadav project
Casual Labour were entitled to grant of temporary status on completion of 180
days of continuous service is neither become out by para 2501 of the Manual nor
by the decision of this Court in Inder Pal Yadav. The acceptance of the
contention of Ms. Ramamurthi that earlier Project Casual Labour could be
treated as temporary after completion of 180 days of continuous service would
mean that as a result of the scheme that was accepted by this Court in Inder
Pal Yadav the position of project Casual Labour became worse than what it was
prior to the acceptance of the scheme because under the Scheme they could be
treated as temporary only on completion of 360 days of continuous service. the
decision in Inder Pal Yadav does not support such a view. It mus, therefore, be
held that prior to the Scheme which was accepted by this Court in the case of Inder
Pal Yadav project Casual Labour could not claim temporary status and such
temporary status could only be acquired by them on the basis of the scheme as
accepted in Inder Pal Yadav.
In its
judgment dated February 8, 1991 the Tribunal had held that exclusion of period
of service rendered as Project Casual labour before they were regularly
absorbed prior to 1.1.1981 results in such employees being discriminated as
compared to project casual labour who were employed subsequently and whose
service as project Casual labour prior to absorption is counted for the
purposes of qualifying service. The said finding of the Tribunal is based on
the decision of this Court in D.S. Nakara. In this regard, it may be stated
that the Tribunal was in error in invoking the principle laid down in D.S. Nakara
in the present case. The decision in D.S. Nakara has been considered by this
court in subsequent decisions and it has been laid down that the principle laid
down in D.S. Nakara can have application only in those cases where there is
discrimination in the matter of existing benefit between similar set of
employees and the said principle has no application where a new benefit is
being conferred with effect form a particular date. In such a case the
conferment of the benefit with effect from a particular dated cannot be held to
be violative of Article 14 of the Constitution on the basis that such a benefit
has been conferred of certain categories of employees on the basis of
particular date.
[See: Krishena
Kumar v. Union of India & Ors., 1990 (4) SCC
207; State of West
Bengal v. Ratan Behari
Dev, 1993 (4) SCC 62, and State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti, 1995(2) SCC 117]. In the
present case, the benefit of counting of service prior to regular empowerment
as qualifying service was not available to casual labour. The said benefit was
granted to Open Line Casual Labour for the first time under order dated October
14, 1980 since open Line Casual Labour could be treated as temporary on
completion of six months period of continuous service which period was
subsequently reduced to 120 days under Para 2501 (b) (i) of the Manual. As
regards Project Casual Labour this benefit of being treated as temporary became
available only with effect from 1.1.1981 under the scheme which was accepted by
this court in Inder Pal Yadav. Before the acceptance of that scheme the benefit
of temporary status was not available to project Casual Labour. It was thus a
new benefit which was conferred on project Casual Labour under the scheme as
approved by this court in Inder Pal Yadav and on the basis of this new benefit
project casual Labour became entitled to count half of the Service rendered as
Project Casual Labour on the basis of the order dated October 14, 1980 after
being treated as temporary on the basis of the scheme as accepted in Inder Pal Yadav.
We are, therefore, unable to uphold the judgment of the Tribunal dated February 8, 1991 when it holds that service rendered
as Project Casual Labour by employees who were absorbed on regular permanent/temporary
posts prior to 1.1. 1981 should be counted for the purpose of retiral benefits
and the said judgment as well as the judgment in which the said judgment has
been followed have to be set aside. The judgements in which the Tribunal has
taken a countrary view have to be affirmed.
In the
result, the appeals filed by the Railway Administration are allowed and the
judgments of the Tribunal impugned in these appeals are set aside. The Appeals
arising out of Special Leave Petitions (c) Nos. 26790 of 1995 and 3423 of 1997
filed by the employees are dismissed. No order as to costs.
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