Saturday, November 3, 2012

OA 138 / 2010 on ??????????



DATED THIS THE                 TH  DAY OF .............. ,  20........



Smt Rajeswari,
Aged about 61 years,
D/o  Late Mylar Lingaiah,
No.7-III Cross, Nehru Road,
Mysore Road, Hosagudathahalli,
Bangalore-560 026.                                     …                               Applicant

(By Advocate Shri V.V. Balan)

1.            The Union of India,
             By its Secretary ,
             Department of Posts,
            Dak Bhavan,
            New Delhi-110 001.

2.            The Chief Postmaster General,
            Karnataka Circle,
            Palace Road,
            Bangalore- 560 001.           

3.            The Senior Superintendent,
            Bangalore Sorting Division,
            Bangalore GPO Building,
            Bangalore-560 001.                                     ...                     Respondents.

(By Shri M. Rajakumar, ACGSC)



This OA was filed on  5.3.2010. The very short point is whether the temporary status employee in the Department of Posts who is not granted the permanent status even after 14 years of service is eligible for retiral benefits or not?

2.         The brief facts of the case are that the applicant Smt Rajeswari born in 1949 joined at the RMS Packet Sorting Officer in the office of Postal Department on 16.3.1988. She was conferred with temporary status on from 1.1.1995 vide order dated 5.3.1998 (Annexure A-3). On 31.12.2009 she was orally told not to attend the office from the next day onwards. Thus there is a presumption that this was done so in view of her attaining the age of 60 years on 31.12.2009.

3.         The department has not issued any retirement order nor agreed to her request for giving her pensionary benefits. It is not disputed that after being granted temporary status in 1995, she was regularly given 8 hours duty, she was regularly given her annual increments, her GPF contribution was recovered and  so also the recovery for Group Insurance and Professional tax. When the 5th and 6th Pay Commission came, her pay fixation was revised. Thus, in all aspects, she was treated as not less than a permanent employee and therefore it could  be held that she is entitled for all the pensionary benefits. She had represented to R-2 on 5.12.2008 (Annexure A-1) but no reply has been furnished till date, hence this application.

4.         At the outset, the learned Counsel for the respondents submitted that the subject matter in this OA is covered in another judgement of this Bench in OA.56/2003 coupled with OA.1017/02 in the case of Shri Chandrashekar. In the said OA, a question was framed by this Bench of the Tribunal as below:
“The short but interesting question of vital ramification raised in the present set of proceedings is as to whether a casual labourer with temporary status is entitled to the benefit of leave encashment and pensionary benefit under the provisions of Central Civil Service (Leave) Rules, 1972 & Central Civil  Services (Pension) Rules, 1972 respectively?”

5.         While answering this question, the Tribunal has decided on 27.3.2003 that:
“The applicant who was a casual labourer with temporary status is not governed by the provisions of the Central Civil Services (Pension) Rules 1972 and accordingly he is not entitled to pension. The respondents are well within their power to rectify their mistake. Accordingly, the respondents are justified in directing the applicant to surrender pension payment order vide communication dated 23rd January 2003. Similarly, the provisions of Central Civil Services (Leave) Rules, 1972 are not applicable to a person who was casual labourer with temporary status and as such is not entitled to leave enchashment benefit.”

5.         This Judgement of the Tribunal was also upheld by the High Court of Karnataka in Writ Petition No.20669 -70/2003 (S-CAT)

6.             In answer to this objection raised by the learned Counsel by the respondents, the learned Counsel for the applicant has cited 3 subsequent Judgements of the adjunct Bench of this Tribunal,  OA.639/07 decided on 22.1.2008 of the Bombay Bench. OA.579/07 decided on 21.6.2010 of Bombay Bench and OA.406, 584 & 585/07 decided on 25.11.2010 by Bombay Bench.

7.         The issue in OA.639/07 is about the applicant who was given temporary status followed by permanent status after some years, and the decision of the OA is that the service rendered by him while in temporary status will be counted towards deciding the eligibility to count pension if they have served for 3 years in the temporary status as per the amended circular dated 30.11.92.

8.         That OA therefore differs from the present OA in so far as the applicant of that OA had been regularised in Group 'D' and the issue remain only about the quantum of pensionary benefits. So there is a clear distinction between that OA and the present OA.

9.         In OA.579/07 the issue was that the applicant appointed as casual Sweeper w.e.f. 1.2.1991, was not, even after completing 2 decades of service, regularised in any appropriate Group 'D' category. Citing some Judgements of the Hon'ble Apex Court, particularly Uma Devi's Judgement, the Bombay Bench has quoted:
            “In the case in hand, however, it is evident that the action of the respondents in not regularising the services of the applicant is patently illegal, arbitrary, exploitative and against Articles 14,16 and 21 of the Constitution of India as well as Directive Principles of State Policy. The applicant has worked for almost two decades as Sweeper in a satisfactory and convincing manner, without any complaint whatsoever. The requirement of work of sweeper in the respondent organisation, therefore, cannot be doubted. The applicant is, therefore, entitled to be considered and regularised as a Sweeper or against a Group 'D' post with all consequential benefits on notional basis.”

10.       In view of the above, the Bombay Bench has held that the said applicant is entitled for regularisation against any Group 'D' posts along with all consequential benefits notionally. Thus, this OA would has some bearing on the present case as it would question the inaction of the respondent department in not regularising the present applicant for such a long time of nearly 15 years.

11.       In the third citation i.e. OA. 406, 584 and 585/2007, the main issue again was the regularisation of Sweepers working as casual labourers for  periods ranging from 10 to 17years and it was held that refusing to regularise is not in order. In that OA the Bombay Bench relied on its earlier judgement in OA.467/05, where the respondent, postal department was directed to consider the case of the applicant for regularisation and this Judgement of the Bomaby Bench of the Tribunal was upheld in W.P.6479/08 by the Bombay High Court as well as in the consequent SLP by the Hon'ble Supreme Court in the Judgement dated 9.7.2010. In view of that the Bombay Bench of the Tribunal once again allowed all the three OAs and directed the respondents to regularise the applicants in Group 'D' posts.

12.                   The ratio of the second and third judgement of Bombay Bench of the Tribunal is that the casual labourer from whom full days' work is being  extracted, must be regularised, as there appears no justification to continue them as casual labourers for such a long period of more than a decade or so. It is obvious that on regularisation  they would get all the service related benefits including the pensionary benefits. The ratio in the first citation is also that the service rendered under temporary status has positive implication on the issue of the pension of the applicant.

13.       All these judgements rendered have come much later than the Judgement in OA.56/03 relied upon by the learned Counsel for the respondents. That judgment purports to make a distinction between the employee who has been given permanent status even for a short period vis-a-vis another employee who has not been given permanent status even for a day.  It was held therein that the second category of employee will not be entitled to any retiral benefits. This decision seems to have been largely changed in view of the three decisions of the Bombay Bench of the Tribunal, where continuing a person even as casual labourer without regularisation for long period is declared as anathema.    
14.       We have also come across the judgment of Madras High Court dated 20.02.2004, in Writ Petition No.15668/01, wherein it was directed to count the continuity of service rendered as casual labourer from completion of 240 days in  a calendar year for the purpose of terminal/retirement benefits in respect of 29 Group 'D' employees of Central Cattle Breeding Farm at Avadi, Chennai.  That, along with the judgment of Bombay Bench of CAT points to the ratio that employees who have rendered long years of service in an organisation should not be deprived of retirement benefits.

15.       Even at the cost of repetition, we would like to recapture that large Government departments, such as the Department of Posts here, which have many field officers in interior areas tend to employ part-time casual labourers, who gradually start getting used for a full day work, many times without a formal order assigning them full day's work.  From amongst them, some are given temporary status for a long time and still fewer amongst them are given regularisation against available vacancies.  It is evident that the Departments use the services of all these categories and very rarely efforts are made for a timely review of the situation at fixed intervals of let us say 5 years.  This leads to individual employees being forced to approach the Tribunal.  The Department of Posts would do well to introduce a practice of 5-year review of the number of part-time casual labourers, full time casual labourers and temporary employees working within each circle and look into the aspects of their timely regularisation or dis-continuation in case vacancies are not available.  This lower grade staff cannot be left in dark just because the senior officers at the circle level cannot find time to undertake this exercise as a routine effort for systematisation and good administration.  Such action will reduce the need for employees to run to Tribunal for relief.

16.       In the instant case, we see from the judgments of the Bombay Bench that they have directed for some casual labourers for straight-away regularisation even without waiting for the intermediate step of temporary status.  The applicant who has rendered service with temporary status for more than 14 years, is at a much higher status than the casual labourer.  Had the department gone by a timely 5 year review, she had fairly good chance of being regularised against a permanent vacancy.  The respondents have not claimed anywhere that during all these 15 years, while she was working as a temporary status Group 'D' employee, the whole circle did not have any vacancy.  The applicant had been getting all other benefits of a regularised service such as pay scale of V and VI Pay Commission, Annual Increments, GPF contribution, recovery of Group Insurance and Professional Tax  It is a rightful expectation to get pensionary benefits.  Such expectation is supported by the latest decision of the Bombay Bench of this Tribunal as quoted above.

17.       In view of all these, we feel it just and right to allow the OA, holding the applicant as entitled for Pensionary benefits with effect from 1.1.2010.  The respondents shall pass the necessary orders and give financial benefits within two months from the date of this order.  No costs.

(V. AJAY  KUMAR)                                                   (LEENA MEHENDALE)         
           MEMBER(J)                                                                            MEMBER(A)


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