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PETITIONER: RAM KUMAR & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT02/12/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1987 SCALE  (2)1192

ACT:      Indian Railway  Establishment  Manual-Para  2511-Casual labour  employed   by  Railway   Administration-Engaged   on construction and  open line-Whether  entitled to  same  pay- Regularisation and  grant  of  temporary  status  to  casual labour-Necessity for-Effective  implementation of provisions for protection of casual labour-Emphasised-Retiral benefits- Admissibility of.

HEADNOTE: %      The petitioners,  who were  engaged on  terms of casual labour for  periods varying  between 10  and 16 years in the Construction Department  of the  Signal Unit in the Northern Railway, filed  writ petitions  in this  Court alleging that though they  had put  in continuous service for quite a long period, the  Railway Administration-the  respondent, had not treated  them   as  temporary   servants  and   had  applied discriminatory rates of wages, and prayed for a direction to treat them  at par  with maintenance workers, and to declare that they  were entitled  to equal  pay for  equal work  and absorption in the regular cadre in The permanent category as per the circulars issued by the respondents.      The respondents  in their  counter affidavits contested the claim  of the  petitioners contending  that out  of  the forty four petitioners, sixteen bad been empanelled, five of whom had  been  given  temporary  appointments,  eleven  had refused to  join and  seventeen  had  been  given  temporary status, and  that  by  the  Railway  Board’s  directions  on January 1,  1984, project casual labourers were now entitled to  all   privileges  that  were  applicable  to  open  line temporary railway servants, that temporary status will first be given  in the  cadre of  Khallasis and  then promotion to skilled category,  after conducting trade test, and that the employees in  the open  line acquired  temporary  status  on completion of  120 days  of service  whereas such status was acquired by  the casual labour in project work on completion of 360 days as formulated under orders of this Court.      Disposing of the writ petitions, ^      HELD: Casual  labour seems to be the requirement of the Railway 139

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administration  and   cannot   be   avoided.   The   Railway Establishment  A   Manual  has  made  provisions  for  their protection, but  implementation  is  not  effected.  Several instructions were  issued  by  the  Railway  Board  and  the Northern Railway  Headquarters to  remove  the  difficulties faced by  the  casual  labour  but  there  is  slackness  in enforcing them.  This Court  hopes and  trusts that  such an unfortunate situation  will not arise again and in the event of  any   such  allegation   coming  to   the   Court,   the Administration will have to be blamed. [144F-G]      No doubt,  the petitioners  have put  in more  than 360 days  of  service.  But  keeping  the  prevailing  practice, distinction between  the casual  labour employed in the open line, and  in the project line cannot be obliterated. [141D- F]      The Railway  Administration should take prompt steps to screen such  of the petitioners who have not yet been tested for the purpose of regularising their services. [144C]      The respondents  are directed to consider the claims of the petitioners  promptly and  make appropriate  orders  for their regularisation. [144D-E]      The petitioners  are entitled  to the  same pay  as  is admissible to  others, either  in the project or in the open line. Retiral benefit of pension is not admissible.[144D,B]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  Nos. 15863-15906 of 1984.      (Under Article 32 of the Constitution of India)      D.N. Goburdhan,  D. Goburdhan,  Ms. Gita Luthra and Ms. Pinky Anand for the Petitioners.      G. Ramaswamy,  Additional  Solicitor  General,  Kuldeep Singh, Additional  Solicitor General,  C.  Ramesh  and  Mrs. Sushma Suri for the Respondents. G      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. The  petitioner in  each of  these applications under  Article 32  of  the  Constitution  is  a workman engaged  on  terms  of  casual  labour  for  periods varying between 10 140 and 16  years in  the Construction  Department of the Signal Unit in  the Northern Railway. All the writ petitions having disposed of  by a  common judgment  as questions  of law and fact involved therein are similar.      The petitioners  alleged that  notwithstanding the fact that each  of them has put in continuous service for quite a long period,  the Railway Administration, respondent herein, has not  treated them  as temporary servants and has applied discriminatory  rates  of  wages.  They  have  asked  for  a direction to  treat the  petitioners at par with maintenance workers and  to declare  that they are entitled to equal pay for equal  work and  have asked  for their absorption in the regular cadre in the permanent category as per the circulars issued  by  the  respondents.  A  number  of  documents  and circulars issued by the Administration have been produced in support of their claim.      The Senior Signal & Telecom Engineer (Power Signalling) has filed  a counter-affidavit  on behalf of the respondents challenging the  claim of  the petitioners. According to the respondents five  out of  the forty-four petitioners in this group of  writ petitions  had undergone  medical examination and were  granted temporary status as Khallasis. One of them has been directed to be absorbed against a permanent vacancy

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in the open line; five others have refused to go to the open line for  permanent  absorption.  He  further  averred  that though prior  to the issue of the Railway Board’s directions on January  1,  1984,  project  casual  labourers  were  not entitled to  all the  privileges like  House Rent Allowance, City Compensatory  Allowance, Casual  Leave, increment etc., they are now entitled to all the privileges as applicable to open  line   temporary  railway   servants  after  attaining temporary status.  In Paragraph 23 of the counter-affidavit, it has  been specifically  pleaded that  as per  the  extant rules, temporary  status will first be given in the cadre of Khallasi  and  then  promotion  to  skilled  category  after conducting the  trade-test is admissible. A further detailed counter-affidavit has  again been  filed by  another  Senior Signal &  Telecom Engineer, wherein along with the affidavit particulars of  service of  each of the petitioners has been provided. Petitioners have filed a Rejoinder.      At the  hearing of  the applications,  counsel for  the petitioners  as   also  the  learned  Additionaly  Solicitor General  were   given  full  opportunity  of  placing  their arguments  and   documents.  In  addition,  they  have  also furnished written submissions. 141      It is  stated on  behalf of the Administration that out of fortyfour  petitioners sixteen  have now  been empanelled and of  them five  have been  given temporary  appointments; eleven are  said to  have refused  to join and seventeen are still continuing  with temporary  status. Learned Additional Solicitor  General   states  that  petitioners  are  project employees and  do not  belong to the open line. According to him- employees  in the open line acquire temporary status on completion of  120 days of service as against 180 days which was the  previous requirement.  That status  is acquired  on completion of  360 days by casual labour in Project Works as provided in  the scheme  formulated  under  orders  of  this Court, though  such status were acquirable by project casual labourers on completion of 180 days of continuous employment previously. Learned  counsel for  the respondents has placed reliance on  the definition  of ’Project’  which  means:  "a project should  be taken as construction of new lines, major projects,  restoration   of  dismantled   lines  and   major important  open  line  works,  line  doubling,  widening  of tunnels etc.  which are  completed within  a  definite  time limit".      Admittedly the  petitioners have  put in  more than 360 days of  service. Though  counsel for  the  petitioners  had pointed out that the Administration was requiring continuous service  for  purpose  of  eligibility,  learned  Additional Solicitor General  on instructions obtained from the Railway officers present  in Court  during arguments  has  clarified that continuity  is not  insisted upon  and though  there is break in  such continuity the previous service is also taken into account.  Learned Additional Solicitor General has made a categorical statement before us that once temporary status is acquired,  casual employees  of both  categories stand at par. Keeping  the prevailing  practice in  the  Railways  in view, it  is difficult  for us to obliterate the distinction between the  two  categories  of  employees  till  temporary status is acquired.      With the  acquisition of  temporary status  the  casual labourers are entitled to:      (1)  Termination   of  service  and  period  of  notice           (subject  to  the  provisions  of  the  Industrial           Disputes Act, 1947).      (2) Scales of pay.

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    (3) Compensatory and local allowances. 142      (4) Medical attendance      (5) Leave rules.      (6) Provident Fund and terminal gratuity.      (7) Allotment  of railway accommodation and recovery of           rent.      (8) Railway passes.      (9) Advances.      (10) Any  other benefit  specifically authorised by the           Ministry of Railways. It is not disputed that the benefit of Discipline and Appeal Rules is  also applicable  to casual  labour with  temporary status. It  is also  conceded that on eventual absorption in regular employment  half the service rendered with temporary status is  counted  as  qualifying  service  for  pensionary benefits.      In the  Signal and  Telecom  Construction  organisation under which  the petitioners  are working,  according to the Railway   Administration   further   privileges   of   being regularised in  permanent service is affirded by giving them access to  their regularisation  against permanent vacancies which mostly  occur in  open line.  For such purpose, casual labour in open line as well as willing project casual labour are combined  for the  purpose of  screening and  forming of panel on  the basis  of seniority depending upon the days of work put  in. In view of the submission, learned counsel for the  respondents   has  pleaded   that  the   allegation  of discrimination does not exist.      Disputes arising  out of  termination of employment and inter se  seniority came  before  this  Court  in  the  Writ Petition No.  147 of  1983 (Inderpal Yadav & Ors v. Union of India. This  Court changed  the existing  prevalent practice for reckoning  seniority  and  directed  that  seniority  of project casual  labourers should  be combined  and  prepared departmentwise  and   categorywise  and   in  terms  of  the directions of this Court, steps have been taken. It has been further contended that by the time these writ petitions were filed, the  Railway, Board’s order of 1st of June, 1984, had not been  given but  with those  directions now  holding the field, the  ambit of  grievances has been very much reduced. Learned Additional Solicitor General has gone 143 to the  extent of  even saying  that nothing survives in the writ petitions.      What exactly  are the  benefits admissible to temporary railway servants have, however, been seriously debated.      Paragraph 2511  of  the  Indian  Railway  Establishment Manual provides:-           (a)  "Casual   labour  treated  as  temporary  are                entitled to  all the  rights  and  privileges                admissible to  temporary railway  servants as                laid down  in Chapter  XXIII  of  the  Indian                Railway Establishment  Manual. The rights and                privileges admissible  to  such  labour  also                include the  benefits of  the Discipline  and                Appeal Rules.  Their service,  prior  to  the                date of  completion of six months’ continuous                service will  not,  however,  court  for  any                purposes   like   reckoning   of   retirement                benefits,   seniority    etc.   Such   casual                labourers will,  also, be  allowed  to  carry                forward the  leave at their credit to the new                post on absorption in regulation service.           (b)  Such  casual  labour  who  acquire  temporary

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              status, will  not, however,  be brought on to                the permanent  establishment unless  they are                selected through regular Selection Boards for                Class IV  staff. They will have a prior claim                over others to permanent recruitment and they                will be  considered  for  regular  employment                without  having   to  go  through  employment                exchanges. Such  of them  who join  as casual                labourers before  attaining  the  age  of  25                years  may   be  allowed  relaxation  of  the                maximum age  limit prescribed  for  Class  IV                posts to  the extent  of their  total service                which may  be either  continuous or in broken                periods.           (c) It  is not necessary to create temporary posts                to accommodate  casual labourers  who acquire                temporary  status   for  the   conferment  of                attendant benefits  like  regular  scales  of                pay, increments  etc. Service  prior  to  the                absorption      against       a       regular                temporary/permanent  post   after   requisite                selection will,  however  not  constitute  as                qualifying service for pensionary benefits." 144      It is  the stand  of the  learned Additional  Solicitor General that  no pensionary  benefits are admissible even to temporary railway  servants  and,  therefore,  that  retiral advantage  is  not  available  to  casual  labour  acquiring temporary  status.   We  have   been  shown   the  different provisions in  the Railway  Establishment Manual as also the different   orders    and   directions    issued   by    the Administration.  We   agree  with   the  learned  Additional Solicitor General  that retiral  benefit of  pension is  not admissible to either category of employees.      As  already  stated,  sixteen  out  of  the  forty-four petitioners have  already been empanelled and eleven seem to have joined,  while seventeen  are continuing  on  temporary status. We  expect the Railway Administration to take prompt steps to  screen such  of the  petitioners who  have not yet been tested for the purpose of regularising their service.      Learned  Additional   Solicitor  General   specifically accepted  the   position  that  the  petitioners  should  be entitled to  the same  pay as  is 1)  admissible  to  others either in  the project  or in the open line. That would take away inequality  which is main grievance of the petitioners. The respondents  shall have  a  direction  to  consider  the claims  of   each  of  the  petitioners  promptly  and  make appropriate orders for their regularisation.      For over  ten years, litigations of this type have been coming to  the Court.  About three  years back,  this  Court directed a  scheme for  absorption in Yadav’s case which has been framed  and is operative. Casual labour seems to be the requirement of  the Railway  Administration  and  cannot  be avoided.  The   Railway  Establishment   Manual   has   made provisions for  their protection but implementation is not P effective. Several  instructions issued by the Railway Board and the  Northern Railway Headquarters were placed before us to  show   that  the   Administration  is  anxious  to  take appropriate steps  to remove  the difficulties  faced by the casual labour  but there  is perhaps  slackness in enforcing them. We  hope and  trust that such an unfortunate situation will not  arise again  and in  the event any such allegation coming to  the Court, obviously the Administration will have to be blamed.      The writ  petitions are disposed of with the directions

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indicated above without any order for costs. N.P.V.                                Petitions disposed of. 145