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PETITIONER: UNION OF INDIA AND ORS.

       Vs.

RESPONDENT: KESHAB LAL ROY AND ORS.

DATE OF JUDGMENT:       09/09/1996

BENCH: J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T KIRPAL, J.      The respondents  herein were  originally  employees  of Arrah Sasaram  Light Railways  (hereinafter referred  to  as ‘ASL Railways’)  which was  owned by  a private  party. This company closed  down its  operation with  effect  from  15th February, 1978.  Termination  notices  were  issued  to  the employees including  the respondents,  and the  company paid the termination benefits as admissible in law.      With a  view to mitigate the hardship to the retrenched employees of  the ASL  Railways it  was decided  that  these employees may  be appointed  as fresh entrants in the Indian Railways. This  decision was  contained in  the letter dated 17th March,  1978 written by the Ministry of Railways to the General Manager, Eastern Railways. The said letter contained the terms  and conditions on which these erstwhile employees of ASL Railways were to be given appointment.      The respondents were thereupon appointed in the Eastern Railways pursuant  to  the  aforesaid  decision  dated  17th March, 1978.  According to  the prevalent rules at that time an employee  in the  Indian  Railways  became  eligible  for pensionary benefits  only after  the employee had put in ten years of  service. The  respondents made a representation to the appellants  to the  effect that  the service rendered by them in  the erstwhile  ASL Railways  should be  taken  into consideration for  the purpose  of granting  them pensionary benefits. This  representation was  rejected. Thereupon  the respondent filed  O.A. No.  113 of  1989 before  the Central Administrative Tribunal.  Patna Bench,  Patna, praying  that then they should be paid pensionary benefits by counting the entire service  or atleast  some percentage  or  some  years service rendered  by them  in ASL  Railways so as to entitle them to get the minimum pension. In support of this plea the respondents contended  that the  Railway Board  had  allowed counting of  previous  service  rendered  by  the  erstwhile Kalighat-falta Railway  (herein after  referred to  as ’K.F. Railways’) for  the purpose  of pensionary  benefits. It was submitted that respondent they were being discriminated. The appellants’ contention  before the  Tribunal  was  that  the status of the ex-employees of the erstwhile private company,

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namely, ASL Railways and K.F. Railways was different. It was submitted that  the assets  of the  K.F. Railways were taken over by  the Government  of  India  by  making  an  outright purchase  whereas  ASL  Railways  had  gone  into  voluntary liquidation and had not been taken over by the Government of India.      Vide order  dated 16th September, 1993, the application filed by  the respondents  was allowed.  While noticing that there was  some difference  between the  status of  the K.F. Railways which  had  been  taken  over  and  status  of  the employees of  the ASL Railways, which was no taken over, the Tribunal  nevertheless   held  that  the  employees  of  ASL Railways had  worked with  a private company for long period and,  therefore,  they  should  have  been  given  the  same treatment as  the employees  of the  K.F. Railways and other companies which had been taken over.      Challenging the  correctness of  the aforesaid decision it has  been contended  by Mr. P.P. Malhotra, learned senior counsel appearing  for the  appellants, that  the  aforesaid letter dated  17th  March,  1978  clearly  stated  that  the appointment of  the respondents  was a fresh appointment and their past  service could  not be considered for the purpose of pension.      Respondent no.  1, appearing in person, and Mrs. Rachna Joshi Issar,  learned counsel  appearing on  behalf  of  the other respondents,  however, submitted  that their  case was similar to  the case  of employees  of the K.F. Railways. It was not  in dispute  that on their appointment in the Indian Railways the  employees of  K.F.  Railways  were  given  the benefit of  their past  service and,  it was contended, that there was no valid reason as to why the same benefits should not have  been extended  tot he  respondents. In  short  the submission  was  that  all  the  ex-employees  of  different ptivate  railways   were  similarly  situate  and  an  their appointment in  the Eastern  Railways  the  earlier  service rendered by  them, in the erstwhile private companies should be taken into consideration for the purpose of pension.      ASL Railways  belonged to  a private party. Voluntarily it closed down its operation with effect from 19th February, 1978.  During   the  arguments  it  was  admitted  that  the employees of  this company,  including the respondents, were paid the  provided fund  which was  due to them by virtue of their  being   employees  of  the  said  ASL  Railways.  The Government of  India was  under no obligation to provide any employment to the employees like the respondents. It is only in order  to mitigated  the hardship  to the said retrenched employees that a scheme was evolved for providing employment to them. In the letter dated 17th March, 1978 in paragraph 2 it is  stated that  it has  been  decided  to  appoint  such employees ‘as  fresh entrants‘  by offering them jobs in the categories for  which they  are found  suitable. A screening committee was  set up  for  the  purpose  of  examining  the suitability of  these employees. It was clarified that these person were  to be  considered for  appointment, and not for absorption. Letters  of appointment  were to  be issued only after suitability  and medical  test  and  clause-v  of  the letter dated  17th March, 1978 further stipulated that these persons like  the respondents  were to "be treated as having been recruited  for the  first time  on the  date  of  their appointment on  the Railway  as temporary employees. The pay of such  employees was  to be  fixed at  the minimum  of the relevant revised scales".      From the  aforesaid letter  it clearly follows that the railway authorities  did not  intend to  give any benefit of past service  to the  newly recruited erstwhile employees of

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the ASL  Railways. It  is for  this  reason  that  on  their selection they  were to  be regarded  as "appointed" and not "absorbed" and their pay was also to be fixed at the minimum of the  relevant scales.  To put  the  matter  beyond  doubt clause-v of the letter clearly mentions that these employees were to be treated as being recruited for the first time "on the date  for their  appointment on the Railway as temporary employees". Even  though in  clause-ix of  the  said  letter dated 17th  March, 1978  it was  stated that  the service of these newly  appointed employees  will be  pensionable,  the letter contained  no stipulation  to  the  effect  that  the service rendered by these employees in the erstwhile private company would be taken into consideration for the purpose of paying them pension.      Faced with  the situation that the terms of appointment did not  entitle the respondents to claim the benefit of the past service to be counted for pension, the main emphasis on behalf  of   the  respondents   was  that  they  were  being discriminated against. In short the submissions was that ASL Railways was  a privately  owned light railway like the K.F. Railways: the erstwhile staff of the K.F. Railways, pursuant to the  decision taken in this behalf on 4th November, 1969, were allowed  their entire  past service  to be  counted for pensionary benefit  and this being so these was no reason as to why  the case  of the  respondents should  be dealt  with differently.      This contention  can be best dealt with by referring to letter  dated  9th  September,  1994  written  by  the  them Minister of  Railways to  a Member  of Parliament and a note annexed thereto.  It appears  that a representation was sent to the minister on behalf of the respondents herein in which it was  contended that  the case of the respondents and that of the  erstwhile K.F.  Railways was similar and, therefore, the respondents  should also  be granted pensionary benefits by counting  their past  service. Reply dated 9th September, 1994 was  sent to  the Member  of Parliament in which it was stated that  a note explaining the position for the case was enclosed. The  relevant portion of the said not accompanying the aforesaid letter for the Minister is as follows:-      Shri  K.L.   Roy  and  others  have      pleaded  for  grant  of  pensionary      benefits on  the analogy of similar      dispensation  given   to  staff  of      Kalighat   Falta    Railway    (KF)      under Mcleod and Company.      K.F. Railways was not taken over as      a going concern but on the basis of      outright purchase of assets without      any liability.  It was  closed down      on  and  from  1.4.1957  and  their      employees were appointed a fresh on      ex-gratia grounds.  Some  of  these      employees   joined   Ahmed   Katwa,      Bankura Damodar  River, and Burdwan      Katwa, light  Railways  under  same      company  viz.  Mcleod,  which  were      subsequently taken  over as a going      concern by the Indian Railways with      their employees  enjoying  benefits      of   their    earlier    continuous      service.   A   peculiar   situation      resulted from  these changes. While      those rendered  sruplus  form  K.F.      Railway under the control of Mcleod      Company and taken as fresh entrants

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    on Indian  Railways could not count      their  past   service,  those   who      joined AK,  BK and  BDR  under  the      same their  past service  on  Light      Railways  counted   for  pensionary      benefits.   To    eliminated   this      discrimination, it  was decided  on      4.11.1969 that  K.F. Light  Railway      Staff who  were earlier  treated as      fresh  entrants,   should  also  be      permitted  to  count  their  entire      service  on   K.F.   Railways   for      pensionary benefits.      It is  evident from  the above that      the cases  of employees of K.F. and      A.S.   Light   Railway   stand   on      different footing."      The facts  stated in  the aforesaid note clearly brings out the  reason as  to why  the ersthile  employees of  K.F. Railways were  given the  benefit  of  counting  their  past service in the Indian Railways for the purpose of pensionary benefits. This  also shows  that  the  respondents  and  the employees of  the erstwhile K.F. Railways were not similarly situated and, therefore, there is no merit in the contention that the respondents had been discriminated.      Mrs. Issar then sought to contend that even in the case of ASL  Railways there  were some  employees who  had joined other companies  which were  then taken  over by  the Indian Railways and  the past  service of those employees was being counted for  pensionary benefits.  This contention  was  not raised before  the Tribunal.  No facts  in this  behalf  are stated even  in the  application which  was filed before the Tribunal. Had this contention been raised in the application filed before  the Tribunal  then the appellants herein would have had an opportunity of giving a reply. There has been no adjudication by  the Tribunal  as to  whether the  facts  so alleged are  correct  or  not.  This  contention  cannot  be allowed to be raised in this court for the first time.      For the  aforesaid reasons  the appeal  is allowed. The order of the Tribunal is set aside and the application filed by the  respondents before the Tribunal stands rejected. The parties to bear their own costs.