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2014 DIGILAW 217 (JHR)

Mohan Mahto v. Union of India

2014-02-07

R.BANUMATHI, SHREE CHANDRASHEKHAR

body2014
JUDGMENT By Court - The present writ petition has been filed challenging order dated 08.03.2011 in O.A. No. 200 of 2009(R) passed by the learned Central Administrative Tribunal, Patna Bench, Circuit Court at Ranchi whereby the Original Application filed by the applicants has been dismissed. 2. The brief facts of the case are that, the petitioner nos. 1 to 5 are ex-employees of Coal Mines Labour Welfare Organisation (hereinafter referred to as 'CMLWO'), Government of India and petitioner nos. 6 to 8 are legal heirs/successors of the ex-employees of CMLWO. On 30.09.1986, CMLWO was merged in Coal India Limited and its employees were given an option for their absorption in the Coal India Limited. The original applicants were absorbed in Coal India Limited by order dated 01.10.1986. The employees initially employed with CMLWO were entitled for Prorata pensionary benefits for the service rendered by them under the Central Government subject to the minimum qualifying period of service that is, 9 years 9 months. For calculation of total period of service rendered under the Central Government, half of the period of continuous service rendered without break, on monthly paid contingent basis, prior to their absorption in Coal India Limited, was to be counted for grant of Prorata pensionary benefits. Thus, the original applicants were also entitled for Prorata pensionary benefits on account of their services in CMLWO prior to their absorption in the Coal India Limited. Some of the present petitioners along with others moved the Central Administrative Tribunal, Patna in O.A. No. 39 of 2004 seeking a direction upon the respondents to grant Prorata pensionary benefits to them. The said Original Application was disposed of by order dated 19.02.2004 with a direction to the respondents to verify the claim of the applicants and to grant the same, if they were entitled. The claim of those persons were rejected vide order dated 20.09.2004. The said order was challenged by 13 persons including the present petitioners in O.A. No. 83 of 2005 which was disposed of by order dated 17.02.2006. The claim raised by5 persons in O.A. No. 83 of 2005 was allowed by the learned Central Administrative Tribunal. However, the case of the present petitioners who were the remaining applicants in O.A. No. 83 of 2005 was remanded to the competent authority for verification of their total period of service for the purpose of grant of Prorata pensionary benefits. The claim raised by5 persons in O.A. No. 83 of 2005 was allowed by the learned Central Administrative Tribunal. However, the case of the present petitioners who were the remaining applicants in O.A. No. 83 of 2005 was remanded to the competent authority for verification of their total period of service for the purpose of grant of Prorata pensionary benefits. Since the order passed in O.A. No. 83 of 2005 was not complied with, the petitioners filed a contempt application being CCPA No. 8 of 2007. The respondents also preferred review application being R.A. No. 8 of 2006 before the learned Central Administrative Tribunal however, the same was dismissed. The order passed by the learned Central Administrative Tribunal in O.A. No. 83 of 2005 was challenged before this Court in W.P. (S) No. 762 of 2008 and the same was dismissed by order dated 09.07.2008, thereafter, the respondents moved the Hon'ble Supreme Court in Special Leave Petition(C) No. ......../2008 (C.C. No. 10101 of 2008). By order dated 04.08.2008, the Special Leave Petition preferred by the respondents was also dismissed. Thereafter, the respondents made payments to the applicant nos. 1 to 5 of O.A. No. 83 of 2005 whose claims were allowed by order dated 17.02.2006. However, with respect to the present petitioners, the respondent no. 2 passed order dated 13.07.2009 rejecting the claim of the original applicants on the ground that there was no record of their engagement on muster-roll. Thereafter, all the petitioners except petitioner no. 7 who is the husband of the applicant no. 7 in O. A. No. 200 of 2009 (R) moved the learned Central Administrative Tribunal, Patna challenging order dated 13.07.2009. Since, O.A. No. 200 of 2009 (R) has also been dismissed by order dated 08.03.2011, the original-applicants have approached this Court by filing the present writ petition. 3. Heard the learned counsel for the parties and perused the materials on record. 4. A perusal of the materials on record indicates that by order dated 13.07.2009, the case of the present petitioners was decided by the respondent no. 2. The respondent no. 2 in his order has referred to communication dated 10.03.1986 of the Department of Personal and Training which provided counting of half of the service as contingent employee for the purpose of terminal gratuity as provided under CCS (TS) Rules, 1965. 2. The respondent no. 2 in his order has referred to communication dated 10.03.1986 of the Department of Personal and Training which provided counting of half of the service as contingent employee for the purpose of terminal gratuity as provided under CCS (TS) Rules, 1965. It has further been noticed that Rule 14 of the CCS (TS) Rules provides as under: - “Service paid from contingency should have been in a job involving whole time employment (and not part time for a portion of a day.) - Service paid from contingencies would be in a type of work or job for which regular posts could have been sanctioned e.g. mails, chowkidar, khalasis etc. - The services should have been one for which the payment is made either on the monthly or daily rated computed and paid on monthly basis and which though not analogous to the regular scale of pay to those being paid for similar jobs being performed by staffs in regular establishments. - The service paid from contingencies should have been continuous and followed by absorption in regular employment without a break. - Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies will be limited to the period after 1st January 1961 for which authentic records of service may be available.” 5. The respondent no.2 proceeded to examine the case of the petitioners in the light of the aforesaid criteria and found that the petitioner no.1 was appointed on the basis of Pump Khalasi on 08.06.1981 and he rendered 5 years, 3 months and 23 days in CMLWO before his absorption in Coal India Limited. With respect to engagement of the petitioner no.1 on muster-roll, the respondent no. 2 has recorded as under: “As regards muster roll period there is no record of his having rendered service as such there is no reference of his working as contingent worker in his Central Government service book which is seen/signed by the applicant namely Sri Mohan Mahato at the time of opening of service book. Since, the applicant namely Sri Mohan Mahato did not put in regular and continuous service of at least 9 years 9 months prior to her oping for service conditions and absorptions in the Coal India Ltd., his claim is rejected and he is not entitled for prorata pensionary benefits as well as Central Govt. Family Pension.” 6. Since, the applicant namely Sri Mohan Mahato did not put in regular and continuous service of at least 9 years 9 months prior to her oping for service conditions and absorptions in the Coal India Ltd., his claim is rejected and he is not entitled for prorata pensionary benefits as well as Central Govt. Family Pension.” 6. Identical orders have been passed with respect to other petitioners also. The learned Central Administrative Tribunal also has recorded that in the servicebook of the applicant which was opened at the time of regularisation, there is no endorsement of their service as contingent paid workers prior to their regularisation. It is admitted case that by orders dated 23.06.1981 and 30.06.1981, the petitioners were appointed on regular basis in CMLWO. The said order clearly indicates that the petitioners were working as casual worker prior to their absorption in CMLWO. This document has not been considered either by the respondent no. 2 or by the learned Central Administrative Tribunal while rejecting the claim raised on behalf of the applicants. 7. The learned Central Administrative Tribunal held that, in case of applicant nos. 1 to 5 in O.A. No. 83 of 2005, there was an endorsement to the effect that, “the details have been checked from the original certificates issued by the authorities and this is in order”, however, in case of the present petitioners since no such report was there, the case of the present petitioners was remanded by order dated 17.02.2006. The learned Central Administrative Tribunal has thus concluded that the certificates issued by the concerned authorities were not the only documents which were taken into consideration by the learned Tribunal while allowing the claim of the applicant nos. 1 to 5 in O.A. No. 83 of 2005. The learned Tribunal has dismissed the Original Application only on the ground that no other document in support of their claim has been produced by the present petitioners. 8. Mr. Jai Prakash, the learned senior counsel appearing for the petitioners contended that the respondent no. 2 while rejecting the claim of the petitioners by order dated 13.07.2009 has failed to consider the certificates issued to the petitioners by the Assistant Engineer (Headquarters), CMLWO. 8. Mr. Jai Prakash, the learned senior counsel appearing for the petitioners contended that the respondent no. 2 while rejecting the claim of the petitioners by order dated 13.07.2009 has failed to consider the certificates issued to the petitioners by the Assistant Engineer (Headquarters), CMLWO. The learned counsel has further submitted that the orders of regularisation dated 23.06.1981 and 30.06.1981 of the petitioners would indicate that they were working as contingent workers however, the same has not been considered by the respondent no. 2. The learned counsel has thus, submitted that in spite of specific direction issued in O.A. No. 83 of 2005, the respondent-authority has failed to consider the claim of the petitioners in right perspective and the learned Tribunal has also erred in dismissing the Original Application. 9. Mr. Prabhash Kumar, the learned counsel appearing for the respondents has supported the impugned order and contended that since there is no endorsement in the service book of the petitioners to the effect that they were working as contingent workers prior to their absorption in CMLWO, the claim raised by the petitioners only on the basis of alleged certificates issued by the Assistant Engineer has rightly been held not tenable. Relying on the stand taken in the Review Application No. 8 of 2006, a copy of which has been filed alongwith the present writ petition, Mr. Prabhash Kumar, the learned counsel appearing for the respondents has submitted that the respondent no. 2 has rightly refused to consider the certificates submitted by the petitioners. 10. From the facts of the case, it is clear that the case of the present petitioners was remanded to the respondent-authority for taking a fresh decision. The order passed in O.A. No. 83 of 2005 was challenged in W.P. (S) No. 762 of 2008 however, the writ petition was dismissed by order dated 09.07.2008. The said order has become final. From the order dated 13.07.2009 passed by the respondent no. 2 it is apparent that the respondent no. 2 has not taken into consideration the previous service of the petitioners with CMLWO whereas, the fact that the petitioners were working with CMLWO as contingent workers is not denied. The order of absorption of the petitioners in CMLWO itself makes it apparent that in recognition of their services, the petitioners were absorbed in the service of CMLWO. 2 has not taken into consideration the previous service of the petitioners with CMLWO whereas, the fact that the petitioners were working with CMLWO as contingent workers is not denied. The order of absorption of the petitioners in CMLWO itself makes it apparent that in recognition of their services, the petitioners were absorbed in the service of CMLWO. Further, it does not appear from the order dated 13.07.2009 passed by the respondent no.2 that he has made any effort to verify the basis or genuineness of the certificates issued by the Junior Engineer (Headquarters), CMLWO to the petitioners. The respondents have reiterated the stand in the present proceeding which they had already taken in the previous proceeding. Merely because there is no endorsement in the service book of the petitioners that they were working on monthly paid contingent basis prior to their absorption in CMLWO, the claim raised by the petitioners has been disbelieved by the respondent no.2. The learned Central Administrative Tribunal has also fallen in error while accepting the stand taken by the respondents. The learned Tribunal has failed to examine the correctness of order dated 13.07.2009 passed by the respondent no. 2, inasmuch as, the admitted fact that the appellants were working as contingent workers in CMLWO prior to their absorption has not been considered by the respondent no. 2. The learned Tribunal further fell in error in observing that no document has been produced by the applicants. In earlier proceeding, a specific direction was issued to the respondents to verify the claim of the applicants based on the certificates issued by the Assistant Engineer (Headquarters), CMLWO and therefore, the respondents were required to plead and prove by producing some evidence for not believing the certificates issued by the said authority. Merely because the present petitioners could not produce any document in support of their claim, their claim could not have been rejected particularly, in view of the orders dated 23.06.1981 and 30.06.1981 by which the petitioners were absorbed in the service of CMLWO. 11. We find sufficient grounds for interfering with the impugned order dated 08.03.2011 and accordingly, the impugned order dated 08.03.2011 is set aside. The matter is remitted back to the respondent no. 2 for considering the claim of the petitioners afresh.