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Gujarat High Court · body

2013 DIGILAW 110 (GUJ)

Union of India v. Radhaben Balwantsinh Rathod

2013-02-22

K.S.JHAVERI

body2013
JUDGMENT : K.S. JHAVERI, J. 1. Special Civil Application No. 2734 of 2003 has been preferred by the Railway Authorities against the judgment and order dated 05.11.2001 passed by the learned Labour Judge, Godhra in Central Recovery Case No. 15 of 1999 whereby the recovery application filed by the respondent came to be allowed by directing the petitioner to pay the amount of L 1, 50, 349/to the respondent towards family pension along with 6% interest. 2. Special Civil Application No. 2920 of 2003 has been preferred by the Railway Authorities against the judgment and order dated 05.11.2001 passed by the learned Labour Judge, Godhra in Central Recovery Case No. 14 of 1999 whereby the recovery application filed by the respondent came to be allowed by directing the petitioner to pay the amount of L 1,33,783/to the respondent towards family pension along with 6% interest. 3. Special Civil Application No. 3820 of 2004 has been preferred by the Railway Authorities against the judgment and order dated 05.11.2001 passed by the learned Labour Judge, Godhra in Central Recovery Case No. 15 of 1996 whereby the recovery application filed by the respondent came to be allowed by directing the petitioner to pay the amount of L 40,000/to the respondent towards family pension along with 6% interest. 4. The facts of the case in SCA No. 2734 of 2003 is that respondent's husband was appointed as a casual labourer on 02.05.1973 and he was appointed as a substitute Gangman on 21.10.1978. The respondent's husband died on 03.11.1983. The respondent widow filed the Recovery Case No.15/1999 claiming that she being the widow of the deceased workman, who died in the year 1983, is entitled to family pension in accordance with Rule 75 of the Railway Services (Pension) Rules, 1993 (hereinafter referred to as 'the Pension Rules'). The Labour Court allowed the said application by directing the petitioner to pay an amount of L 1,50,349/as an amount of pension. 5. The facts of the case in SCA No. 2920 of 2003 are that the respondent's husband was appointed as a substitute on 01.04.1978 and was granted temporary status on 18.08.1979. The respondent's husband died on 19.04.1987. The respondent L widow filed the Recovery Case No.14/1999 claiming that she being the widow of the deceased workman, who died in the year 1987, is entitled to family pension. The respondent's husband died on 19.04.1987. The respondent L widow filed the Recovery Case No.14/1999 claiming that she being the widow of the deceased workman, who died in the year 1987, is entitled to family pension. The Labour Court allowed the said application by directing the petitioner to pay an amount of L 1, 33,783/as an amount of pension. 6. The facts of the case in SCA No. 3820 of 2004 are that husband of the respondent joined Railways as a casual labourer in 1979 and he was granted temporary status on 01.01.1984. He died on 23.08.1993. The respondent widow filed the Recovery Case No. 15/1996 claiming that she being the widow of the deceased workman, who died in the year 1984, is entitled to family pension. The Labour Court allowed the said application by directing the petitioner to pay an amount of L 40000/ as an amount of pension. Hence, the above petitions have been filed. 7. Learned advocate appearing for the petitioner submitted that the Recovery Applications made under Section 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') was not maintainable and the deceased workmen being a casual workers were not entitled to pensionary benefits. Learned Advocate therefore submitted that the respondents would not be entitled to the family pension as claimed by them. 8. Learned advocate appearing for the petitioner further contended that the respondents' husbands were working in the petitioner institution as a substitute Gang Man till the date they died. The services of the respondents' husbands were not regularised as Gang man and under the Railway Pension Rules, temporary employees are not entitled for the benefits of pension. 8. Learned advocate appearing for the petitioner further contended that the respondents' husbands were working in the petitioner institution as a substitute Gang Man till the date they died. The services of the respondents' husbands were not regularised as Gang man and under the Railway Pension Rules, temporary employees are not entitled for the benefits of pension. He invited attention to Rule 23 and 26 of the Railway Services (Pension) Rules, 1993 which read as under: (23) railway servant means a person who is a member of a railway service or holds a post under the administrative control of the Railway Board and includes a person who is holding the post of Chairman, Financial Commissioner or a Member of the Railway Board but does not include casual labour or person 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; (26) substitutes means a person engaged against a regular, permanent or temporary post by reason of absence on leave or otherwise of a permanent or temporary railway servant and such substitute shall not be deemed to be a railway servant unless he is absorbed in the regular railway service. 8.1 Learned advocate appearing for the petitioner placed reliance on the decision of the Hon'ble Supreme Court rendered in Civil Appeal No. 7145 of 2005 dated 21.07.2011. He also placed reliance on the decision of the Hon'ble Supreme Court in case of Ram Kumar and others reported in (1988) 1 SCC 306 . Learned advocate for the petitioner further submitted that the respective husbands of the respondents were not called for screening. He has also relied upon the judgment of the Hon'ble Supreme Court in the matter of Union of India & Others v.. Rabia Bikaner & Others [ (1997)6 S.C.C. 580 ] and submitted that a casual labourer or a substitute workman cannot be said to be in regular service of the Railway Establishment. Such servant would not be entitled to the pensionary benefits. He further submitted that in General Manager v. Chanda Devi 2008(2) SCC 108 while considering a similar scheme for grant of pension to casual labour with temporary status this Court has overruled the decision rendered by the High Court, in Rukhiben Supabhai and held that that widow of casual labour is not entitled to family pension. 9. Mr. He further submitted that in General Manager v. Chanda Devi 2008(2) SCC 108 while considering a similar scheme for grant of pension to casual labour with temporary status this Court has overruled the decision rendered by the High Court, in Rukhiben Supabhai and held that that widow of casual labour is not entitled to family pension. 9. Mr. Shah, learned advocate appearing for the respondents contended that in respect of contentions which are raised by the petitioner before the Labour Court no documents were produced except cross examination of the witness. He drew attention of Subsection of Section 2 of the Railways Act, 1989 which reads as under: "railway servant" means any person employed by the Central Government or by a railway administration in connection with the service of a railway; [ including member of the Railway Protection Force appointed under clause (c) of subsection (1) of Section 2 of the Railway Protection Force Act, 1957(23 of 1957). 10. He further placed reliance on the decision of the Hon'ble Supreme Court in the matter of The Central Bank of India Ltd. v.. P.S.Rajagopalan etc., [ AIR 1964 S.C. 743 ]. He further relied on the decision of the Hon'ble Supreme Court in the matter Ram Kumar and others versus Union of India, reported in ( AIR 1996(1) SLJ 116 wherein head note C reads as under: (C) Railway Casual Labourers attaining temporary status entitled for pensionary benefits as for orders issued by Railway Board be given that benefit. 11. He further placed reliance on the decision of Hon'ble Supreme Court in case of Union of India and others v. K.G. Radhakrishana Panickar and others reported in AIR 1998 SC 2073 wherein it is held that Project Casual Labour became entitled to count half of service rendered as Project Casual Labour on the basis of order of Railway Board dated October 14, 1980 after being treated as temporary on the basis of scheme as accepted in Supreme Court decision w.e.f.1.1.1981. 12. Heard learned advocates for the respective parties and perused the documents on record. 12. Heard learned advocates for the respective parties and perused the documents on record. Before proceeding further with the matter, Subsection 34 of Section 2 of the Railway Act, 1989 is required to be considered from where it is very clear that 'railway servant' means any person employed by the Central Government or by a railway administration in connection with the service of a railway [including member of the Railway Protections Force appointed under clause (c) of subsection (1) of section 2 of the Railway Protection Force Act, 1957. 13. In the case of Ram Kumar v. Union of India and others, reported in AIR 1996(1) SLJ 116, the case was decided only on the statement of Additional Solicitor General and the material then placed before the Court. The relevant part reads as under: The only other question to be seen is with regard to entitlement to pension. It appears that the Board on the basis of the Fourth Pay Commission report has provided for pension at the time of superannuation even to those who are temporary employees. In paragraph 12 of our order on the basis of material then placed before us, we had taken the view that temporary employees were not entitled to pension on superannuation. We direct the Railway Board to consider the claim of temporary employees who are before us for pension at the time of superannuation or otherwise in view of the fact that the Board has taken its own decision differently. Obliviously appropriate material had not been placed before this Court when the submission of Mr. Ramaswamy for Railway administration was accepted in the order. The decision is beneficial to the employees and we direct that the Board's decision may be implemented." 34. The petitioners before the Apex Court were casual labour, therefore, there is no manner of doubt that Apex Court decision in Ram Kumar (Review) case (supra) pertains to this category. The dispute was about this category, otherwise, there is no dispute about entitlement of 'temporary railway servant' availing the retiral benefit of pension. The Board's decision dated April 15, 1987 applies to all railway employees governed by the Manual of Railway Pension Rules 1950. By this order, recommendations of the Fourth Central Pay Commission were accepted and consequential changes made to Rule 801(18) in the Manual of Railway Pension Rules, 1950, granting pensionary benefits to temporary railway servants. The Board's decision dated April 15, 1987 applies to all railway employees governed by the Manual of Railway Pension Rules 1950. By this order, recommendations of the Fourth Central Pay Commission were accepted and consequential changes made to Rule 801(18) in the Manual of Railway Pension Rules, 1950, granting pensionary benefits to temporary railway servants. It is quoted to the extent of relevance: 14. Learned advocate for the respondent submitted that the husbands of the respondents were called for screening and there is also pleadings to that effect. He has relied upon the judgment in the case of Pradhavati Devi v. Union of India, [ (1996) 7 SCC 27 ] wherein, the deceased had worked as worker and obtained the status of substitute as defined under Rule 2315 of the Railway Establishment Manual, in a regular establishment on a regular scale of pay and allowances applicable to those post on which the was employed, Since he died while working on the regular post, his widow became eligible to claim the benefits of the pension scheme. Thus the husband was a substitute working on a regular scale of pay in the railway establishment. Obviously, he was screened and was also appointed to the temporary post, and he was treated as substitute. Under these circumstances, this Court had held that widow of such employee is entitled to the benefit of the family pension. 15. It is required to be noted that the pensionary rules were amended in the year 1993 and the husbands of the present respondents died prior to 1993 and, therefore, the pensionary rules of 1993 is not applicable in the present case. Apart from that provisions of the Act will always prevail. The Labour Court had rightly relied upon the judgment of the Hon'ble Supreme Court in the matter of the Central Bank of India Ltd. versus P.S. Rajagopalan etc. [ AIR 1964 S.C. 743 ] and held that the powers conferred under Section 33C(2) of the Act also envisages resolution of any dispute raised in the application. The Railway Authorities failed to produce any record to establish that the concerned deceased husband of the applicant was not a permanent employee of the Railways. The Authorities have not examined any witness in support of their defence nor have they raised any dispute with respect to the status of the deceased husband of the applicant of being a permanent employee. The Authorities have not examined any witness in support of their defence nor have they raised any dispute with respect to the status of the deceased husband of the applicant of being a permanent employee. Therefore, the respondents widows are entitled to receive the amount of family pension calculated in consonance with Rule 75(2) of the Pension Rules. 16. In the premises aforesaid, the petitions devoid of merits and the same are dismissed accordingly. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated. Petitions dismissed.