ORDER
1. Heard Mr. A.K. Mishra, Learned Counsel for the Railways and Mr. Ashok Das, Learned Counsel for the caveator-Opp. Party.
2. This Writ Application is directed against the judgment and order dated 20.10.2004 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 107 of 2002, which was filed by the caveator-Opp. Party. The Tribunal allowed the Original Application holding that the caveator-Opp. Party is entitled to get the family pension and consequently directed the petitioners to immediately grant family pension to her by computing the entire period of service rendered by her husband in the Railways.
3. The facts of the case are that the Late husband of the caveator-Opp. Party, namely, Brahmananda Pati was initially engaged as temporary Railway employee under the Bridge Inspector, South Eastern Railway, Bhadrak on 24.9.1970 on casual basis with authorised scale of pay. His widow, i.e. the caveator-Opp. Party filed the Original Application before the Central Administrative Tribunal seeking a direction for payment of family pension and gratuity from the date of death of her husband. The case of the petitioners before the Tribunal was that the husband of the Opp. Party was appointed on casual basis having temporary status till his death i.e. 1.6.1983 and a casual labourer not being entitled to get pension, family pension cannot be granted to the widow of such casual labourer.
The Tribunal formulated two points for determination which were :
(a) whether the husband of the applicant was a regular employee at the time of his death; and
(b) whether the family pension was allowed to the widow of Babaji Jena as a favour or he (Babaji) was regularised in services at the time of his death.
4. The service book of the deceased husband of Opp. Party was also summoned along with similarly situated employee Babaji and it was found that the deceased husband of the Opp. Party was initially appointed as temporary Railway man in the scale of pay of Rs. 70-85/- and he was also awarded Rs. 25/- for not participating in the strike. He was allowed to work in temporary capacity in the same pay scale and was allowed annual increments till his death. During his service period, he was also allowed to leave etc. On perusal of record of similarly situated employee, i.e. Babaji Jena, the Tribunal found that he was appointed as temporary Khalasi on 24.6.1972 and was allowed annual increments also periodically till his premature death on 19.3.1993. Therefore, the Tribunal came to the conclusion that both (Babaji) and the deceased husband of the Opp. Party) should have been treated at par, i.e., on temporary service. The widow of Babaji was allowed family pension and, therefore, the Tribunal held in the impugned judgment and order that the deceased husband of the Opp. Party was appointed in temporary service of Railway on 24.9.1970 who died on 1.6.1983, after serving about twelve years in temporary capacity.
5. Learned Counsel for the petitioners has submitted that the family pension scheme was introduced in Railways in the year 1957. He further submitted that casual labourers were not allowed family pension.
6. Although the Tribunal should not have compared the case of the husband of the Opp. Party with the case of Babaji as the date of death of the husband of the Opp. Party is 1.6.1983 while the date of death of Babaji is '19.3.1993' and before death of Babaji an amendment had come into force by which the casual labourers were also granted the benefit of family pension to some extent vide Clause 18 of the Railway Services (Pension) Rules, 1993 (for short 'the Rules, 1993); We feel that in the instant matter, the Tribunal has already given its finding to the effect that the deceased husband of the Opp. Party was having the status of temporary service and therefore, we see no reason to disturb the same.
7. A perusal of the Rules, 1993 which came into force on 3rd December, 1993 shows that its application has been made to the following class of railway servant :
(i) any Group 'D' railway servant whose service was pensionable before the introduction of Pension System for Railway Servants on the 16th day of November, 1957;
(ii) any non-pensionable railway servant who was in service on the 16th day of November, 1957 and who elected to be governed by these rules;
(iii) any non-pensionable railway servant who was in service on the 1st day of January, 1986 and did not opt to be governed by the State Railway Provided Fund (Contributory) Rules; and
(iv) any person entering a railway service on or after the 16th November, 1957, except a person who is appointed on contract or re-employed after superannuation or whose terms of appointment specifically provide to the contrary.
8. Admittedly, the husband of the Opp. Party was appointed after 16.11.1957, i.e., on 29.4.1970 as temporary Bellow Man in a particular pay scale with usual annual increments and therefore, Clause IV above would be applicable in his case. Further the definition of 'railway servant' has been given in Clause 23 of Rule 3 of the Rules, 1993 which speaks as under :
23. 'Railway servant' means a person who is a member of a railway service or holds a post under the administrative control of the Railway Board and includes a person who is holding the post of Chairman, Financial Commissioner or a Member of the Railway Board but does not include casual labour or person lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control.
in view of the above definition, since Late husband of the Opp. Party was appointed as temporary Bellow Man in a particular pay scale with annual increments against the sanctioned post of Bellow Man, he was 'railway servant' as defined in the Rules, 1993 quoted above.
9. In Clause 3 of Rule 18 of the Rules, 1993 it has been provided that in the event of death in harness of a temporary railway servant his family shall be eligible to family pension and death gratuity on the same scale as admissible to families of permanent railway servant under these rules.
The said provision is quoted as under :
3. In the event of death in harness of a temporary railway servant his family shall be eligible to family pension and death gratuity on the same scale as admissible to families of permanent railway servants under these rules.
10. Therefore, in the event of death during service of a temporary railway employee, there is no distinction under the Rules, 1993 in respect of admissibility of the family pension between the temporary railway employee and a permanent railway employee and pension to the family of a temporary employee cannot be denied on the ground that the employee had not attained the status of a permanent employee.
Therefore, we are of the opinion that the Tribunal has rightly held that the Opp. Party would be entitled to get family pension. We find no illegality, impropriety or manifest error of law in the impugned judgment and order.
In the above, the Writ Application is misconceived and is, therefore, dismissed in limine.