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1980 DIGILAW 224 (KER)

ASST. ENGINEER, SOUTHERN RAILWAY v. SYEDALAVI

1980-09-18

BALAKRISHNA MENON, V.BALAKRISHNA ERADI

body1980
Judgment :- 1. This appeal has been preferred by the Southern Railway Administration represented by the Assistant Engineer, Southern Railway, Olavakkot, and the Divisional Personnel Officer, Southern Railway, Olavakkot, against the judgment of a learned Single Judge of this court allowing O. P. No. 1077/76 filed by the 1st respondent herein, quashing the order Ext. P5 and directing that the writ petitioner should be given the amount claimed by him as wages for the period from 3 4-1969 to 25-8-1971. 2. The writ petitioner was employed as a casual labourer under the Assistant Engineer, Southern Railway, Olavakkot-Ist respondent in the O. P.- from 3-10-1968 till 31-7-1969. On 31-7-1969 his services were terminated on the ground of his having been found to be medically unfit. Subsequently, he was provided with alternate employment in a different capacity, for which he was considered to be sufficiently medically fit, with effect from 20-8-1969 and he worked in the said capacity till 25-8-1971 A dispute arose between the writ petitioner and the Railway Administration on the question of the petitioner's entitlement to payment of wages at the Central Pay Commission rates as made applicable to the casual labourers with certain modifications. According to the petitioner he was entitled to count the period of service put in by him as casual labourer from 310-i968 to 31-7-1969 for the purpose of payment of his wages in the post in which he was subsequently re-employed on a casual basis with effect from 20-8-1969. According to the Railway Administration only the continuous service put in by the petitioner in the new capacity, in which he was re-employed with effect from 20-8-1969 could be reckoned for the purpose of his eligibility for payment of wages at the Central Pay Commission scales. This dispute was taken up by the petitioner before the Labour Court, Quilon under S.33-C (2) of the Industrial Disputes Act for computation of the benefits due to him in accordance with law for the period from 3-4-1969 to 25-8-1971 The Labour Court, by its order Ext. P5, rejected the petitioner's claim and the 0 P.-O.P. No. 1077/76-was thereafter filed by the petitioner seeking to quash Ext. P5 and praying for a direction to the Railway Administration through the present appellants, for payment of the wages covered by his claim put forward before the Labour Court. 3. P5, rejected the petitioner's claim and the 0 P.-O.P. No. 1077/76-was thereafter filed by the petitioner seeking to quash Ext. P5 and praying for a direction to the Railway Administration through the present appellants, for payment of the wages covered by his claim put forward before the Labour Court. 3. The learned Single Judge allowed the writ petition on the sole ground that the petitioner's case was covered by the provision contained in Para.2612 of the Railway Establishment Manual, which reads as follows: "2612. Past service to be treated as continuous. - A railway servant absorbed in an alternative post will, for all purposes, have his past service treated as continuous with that in the alternative post and will, if a pre-31 railway servant who has elected to remain on the pre-31 scales of pay, continue to remain eligible for such scales. He will also continue to be governed by the conditions of service applicable to him before he was declared medically unfit." Counsel appearing for the appellants contended before us that the aforesaid provision contained in Para.2612 can have no application to casual employees like the writ petitioner. We find there is force in this contention. The opening words of the said provision make it clear that the benefit of the provision will enure only to "a railway servant absorbed in an alternative post". A causal labourer does not hold any post in the service of the Railway Administration, and on his having been found medically unsuitable for a particular type of work and being offered alternative employment on casual basis he cannot be regarded as a railway servant absorbed in an alternative post. In our opinion, the provision contained in para 2612 will apply only to persons holding posts in the service of the railway administration on a regular basis. The expression "Railway servant" has been defined in sub-rule 13 of R.102 of Chap.1 of the Indian Railway Establishment Code in the following terms: " "Railway servant" means a person who is a member of a service or who holds a post under the administrative control of the Railway Board and includes a person who holds a post in the Railway Board. Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control do not come within the scope of this definition. This term excludes causal labour for whom special order have been framed." In the light of the aforesaid definition there cannot be any doubt that a person like the petitioner, employed under the railway only on a casual basis, will not come within the scope of the provision contained in Para.2612 of the Railway Establishment Manual. 4. Hence we hold, with respect, that the view taken by the learned Single Judge that the petitioner is entitled to the benefit of the provision contained in Para.2612 and to have his service as casual labourer taken into account for purposes of eligibility for Central Pay Commission Scales is not correct, and that the order passed by the Labour Court, Quilon-Ext. P5-did not call for any interference. We accordingly allow this writ appeal, set aside the order of the learned Single Judge and dismiss O. P. 1077/76. The parties will bear their respective costs.