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2018 DIGILAW 694 (JHR)

Sona Ram Rajwar v. Union of India

2018-03-28

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT : 1. Heard learned counsel for the petitioner and learned counsel representing the respondents. 2. Short question which arises for determination in the instant writ petition is whether applicant in O.A. No. 61 of 2012(R) and thereafter in O.A. No.051/00232 of 2015(R) who is writ petitioner herein would be entitled to count his services from 12.5.1976 in order to avail the benefit of Pro-rata Pension scheme contained in Circular No. 49012/15/2002-PRIW dated 24.7.2002 issued by the Department of Coal, Government of India (Annexure-A to the counter-affidavit). The writ petitioner would be completing 9 years and 9 months as on 1st October, 1986 i.e. the cut-off date under the scheme in order to qualify for Pro-rata Pension Scheme, if his period of service is reckoned from 12.5.1976. The learned Central Administrative Tribunal however on the basis of the written statement of the respondents came to hold that the applicant had joined service as Work Charged Mazdoor on 21.6.1977 forenoon and, therefore, did not complete the required period of 9 years 9 months till 1st October, 1986 to avail the scheme. 3. The applicant being aggrieved, preferred the present petition. The respondents on being asked had contested it by filing a counter-affidavit also enclosing the service book of the petitioner. The service book of the petitioner does not show as to when it was opened though it bears signature of Executive Engineer no.1, Coal Mines Welfare Works, Dhanbad and also a broken signature in Hindi on the part of the employee that is the writ petitioner. The first endorsement in the service book which is made by same Executive Engineer again does not bear any date. It shows that the petitioner had joined as work Charged Mazdoor on 21.6.1977 in the pay scale of 196-232. Subsequent entry showed that he had been granted increment at the rate of Rs. 199 and 202 on 21.6.1978 and 21.6.1979 respectively i.e. after one year of his appointment. The subsequent endorsement in the service book shows that the applicant had been taken on regular strength of the division with effect from 18th April, 1981. Petitioner on his part relied upon the office order no. 15 of 1976 dated 11.5.1976 and office order no. 19 of 1976 dated 22.5.1976 (Annexure 2 and 2/A) issued by the officer holding the same post of Executive Engineer No.1, Coal Mines Welfare Works, Dhanbad. The office order no. Petitioner on his part relied upon the office order no. 15 of 1976 dated 11.5.1976 and office order no. 19 of 1976 dated 22.5.1976 (Annexure 2 and 2/A) issued by the officer holding the same post of Executive Engineer No.1, Coal Mines Welfare Works, Dhanbad. The office order no. 19 of 1976 indicates that persons named therein including the petitioner had reported for duty with effect from the date mentioned against the name of each of them and had been taken on the strength of work Charged Establishment of that Division from the same date. Against the name of the petitioner the date of joining is shown as 12.5.76. If the date of joining of the petitioner is reckoned from 12.5.76, he would be entitled to qualify for the Pro-rate Pension in terms of the Circular dated 24.7.2002. 4. On this very issue learned counsel for the respondents was allowed one more indulgence for seeking specific instruction vide order dated 21.2.2018. No further affidavits have been filed thereafter. However, counsel for the respondents Mr. Pratyush Kumar had relied upon the contents of the counter-affidavit filed earlier, specifically para 8 which deals with Annexure-2 series. Learned counsel further submits that the documents have not been categorically denied but have been explained by referring to entries made in the service book of the petitioner and also photocopy of Provident Fund statement for the period 1977 to November, 1997 (Annexure-c). The entries made in the service book corroborate the statements at para 8 and show that he had joined in service on 21.6.1977 as a Mazdoor on work Charged Establishment. Entries made in the service book have primacy as evidence in terms of Section 35 of the Evidence Act r/w Section 114 of the Evidence Act. There is a presumption of regularity of the official proceedings. 5. However, such a presumption is rebutable. As noted above, the service book of the petitioner does not contain any date of opening. On the other hand, the documents at Annexure-2 and 2/A relied upon by the petitioner and issued by an officer holding the same post of Executive Engineer no. 1, Coal Mines Welfare Works Department, Dhanbad shows the date of joining of petitioner as 12.5.1976. The genuineness of this document does not stand refuted. On the other hand, the documents at Annexure-2 and 2/A relied upon by the petitioner and issued by an officer holding the same post of Executive Engineer no. 1, Coal Mines Welfare Works Department, Dhanbad shows the date of joining of petitioner as 12.5.1976. The genuineness of this document does not stand refuted. We cannot also loose sight of the fact that the writ petitioner was working only as a Mazdoor and at best semi literate. No entries relating to his educational qualification are evident from his service book either. It is also not in dispute that the writ petitioner served under the organization after his absorption on 1st October, 1986 i.e. the date of merger of Coal Mines Welfare Works Department with Coal India Limited. Petitioner worked under the Coal India Ltd. and has superannuated about six years back. Petitioner was only claiming the benefit of Pro-rate Pension for the period he had worked under the Coal Mines Labour Welfare Organization i.e. till 1.10.1986. 6. In view of the facts noted above and the discussions made we are of the considered view that the respondents should not deny the claim of the period of service from his date of joining on 11.5.1976 on such technical grounds to render him ineligible to qualify for the Pro-rata Pension benefit available under the Circular dated 24.7.2002. The Hon'ble Supreme Court in a latest judgment rendered on 23.3.2018 in Civil Appeal No. 1254 of 2018 in the case of Netram Sahu Vs. State of Chhattisgarh & Anr. on the question of entitlement of gratuity to the appellant who was appointed as daily wager on 1.4.1986 by the Water Resources Department of the State of Chhattisgarh and had been regularized in the Work Charged Establishment to the post of Pump Operator by order dated 6.5.2008 just three years before his superannuation on 30.7.2011, had been pleased to rely upon the observations made by the Hon'ble Chief Justice M.C. Chagla (as he then was) in the case of Firm Kaluram Sitaram Vs. The dominion of India (AIR 1954 Bombay 50). The dominion of India (AIR 1954 Bombay 50). The pertinent observations made by the Hon'ble Chief Justice had been quoted at para 20 of the judgment and are also being profitably reproduced hereinunder: “Now, we have often had occasion to say that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent judges, as an honest person.” The Hon'be Apex Court in the aforementioned case disapproved the approach of the employer State of Chhattisgarh in seeking to deny the benefit of gratuity to the appellant on the plea that he had been regularized only on 6.5.2008, though as per undisputed facts he had rendered continuous service from the date of his appointment as daily wager on 1.4.1986. The observations and spirit behind it apply with full force to the facts of the instant case also where the respondents are found to have contested the claim of the petitioner on technical grounds despite undisputed documents on record being office order no. 15 of 1976 dated 11.5.1976 and office order no. 19 of 1976 dated 22.5.1976 to show that he had joined as work charged Mazdoor under the same office. 7. In view of the discussions made and for the reasons recorded we are unable to uphold the findings of the learned Tribunal on this score. We, accordingly, hold that the applicant/petitioner herein having completed 9 years and 9 months as on 1st October, 1986 i.e. date of the merger of the Coal Mines Labour Welfare Organization with Coal India Ltd. was entitled for Pro-rata Pension in terms of the Circular dated 24th July, 2002. The respondents should proceed to grant him the consequential benefits within twelve weeks from the date of receipt of copy of this order. 8. Impugned order dated 2.9.2016 passed by the Central Administrative Tribunal in O.A. No.051/00232 of 2015(R) is set-aside. The present application stands allowed.