Judgment:
Hon'ble Sri K. George Joseph, Administrative Member:
This application is remitted to the Tribunal for fresh consideration in accordance with law by the Hon'ble High Court of Kerala vide judgment dated 6.2.09. The brief facts of the case are under:
2. The applicant was engaged as a casual labourer working as a Bricklayer under the Railways on 26.1.1978. He was given temporary status on 21.8.80. He worked as a skilled labourer upto 20.2.89. He was appointed as Gangman which is a Group-D post on 21.1.89, but he continued to be engaged as Bricklayer without the pay scale of Bricklayer. He cleared the test for skilled worker Bricklayer in the Group-C post and was appointed so on 27.2.1989. On realizing that he was not eligible to be appointed as Bricklayer as he has already joined the Group-D post of Gangman, his appointment as Bricklayer was cancelled by order dated 6.3.89. The order appointing as Bricklayer on 27.2.89 and the order cancelling the same on 6.3.89 were not served on the applicant. The applicant even now working as Bricklayer is denied the pay scale of Bricklayer. He therefore, filed this O.A. for a direction to the respondents to absorb him as Bricklayer and pay him the pay and allowances due to him as Bricklayer for the period during which he has worked as Bricklayer and to grant him all consequential monetary and other benefits. The Tribunal dismissed the O.A. as there was no material on record to show that the applicant ever worked as Bricklayer and therefore his application could not be allowed. The Hon'ble High Court observed in the order dated 6.2.98 in W.P.(C) No.22664/07 as under:
"5. From the facts mentioned above, it is common case that he was eligible to be absorbed as Bricklayer, but for his absorption as Group 'D' Gangman on 29.1.1989. Normally, if an employee opts to join a post by absorption or promotion through one channel and when his turn for promotion or absorption through another channel also comes, he is given liberty to opt the channel which is favourable to him, by virtue of his lien in the lower post. This concept, familiar in all services, if applicable to the Railways also, we feel that joining the post of Gangman and working in that post for about one month should not defeat the claim of the applicant to join the post of skilled worker (Bricklayer). But, since there are not pleadings or materials to decide the point, we feel that the Original Application should be remitted to the C.A.T. for fresh consideration of the above point."
3. Accordingly the application is being reheard.
4. The applicant submits that though he had been designated as Gangman he was doing the work of Bricklayer at Quilandi. The applicant had submitted a petition dated 25.7.93 to the second respondent requesting that he should be given the pay scale of Bricklayer. Even now he is working as Bricklayer and is denied the pay scale of Bricklayer. Annexure A7 and Annexure A8 are repair slips dated 22.8.03 and 27.8.03 respectively issued by the Superintending Engineer, Southern Railway, Calicut which show the applicant as Bricklayer.
5. The submission of the respondents is that though the applicant was eligible to be appointed as Bricklayer he became ineligible to be considered for absorption as Bricklayer on being appointed as Group-D Gangman. Earlier this Tribunal had dismissed the O.A. as the applicant could not make out a case that his services were utilized as Bricklayer based on his service book, medical certificate and leave application.
6. The contention of the applicant in the newly included sub-para 9 of para 4 of the amended O.A. in regard to maintenance of lien is to be examined. The respondents have submitted that in terms of para 103(28) of Indian Railways Establishment Code, Vol.I, 198 Edition, the contention of the applicant in regard to maintenance of lien is without any basis. The relevant extract is reproduced as under:
"Lien means the title of a Railway Servant to hold on regular basis either immediately or on the termination of a period or periods of absence, a post, including a tenure post, to which he has been appointed on regular basis and on which he is not on probation."
It is quite clear that lien can be maintained only on a post held on regular basis. The applicant was only a casual labourer prior to absorption in the regular post of Gangman. Therefore he has no lien on any post prior to the said absorption.
7. The respondents have denied the claim of the applicant that he was all along engaged as Bricklayer. However Annexures A7 and A8 show his designation as Bricklayer as on 22.8.03 and 27.8.03. These Annexures are not directly challenged by the respondents. As a casual labourer the applicant was eligible to become a Gangman or a Bricklayer. Absorption as Gangman came first and it is only natural that the first regular posting in Group-D as Gangman offered is taken by the applicant. When his turn came for being appointed as a Bricklayer after passing the trade test, order was issued appointing him as Bricklayer, but the said order was cancelled on realizing that as he was already appointed as Gangman he was ineligible to appointed as Bricklayer. At this point of time it would have been better if he were given a choice to remain as a Gangman or to accept the post of Bricklayer as he was working as Gangman only for a month or so. The applicant who started his career as a casual labourer with hardly any education cannot be expected to take a well informed decision all by himself as to which career path he should travel. As a model employer the Railways should have gone beyond the rule which made a Gangman ineligible to be appointed as Bricklayer, should have explained the two career paths available to him and helped him to make a well informed choice rather than leaving it all to himself. This should be seen in the background of the trade test for Bricklayer that the applicant was made to go through by the respondents.
8. Although the service book and other records may show the applicant as Gangman but it is quite possible that the respondents might have used him as Bricklayer . Joining the post of Gangman and working in that post for about just one month might not have come in the way of the respondents in using the applicant as Bricklayer in spite of various records showing him as a Gangman.
9. There is a rule which for administrative convenience prohibits consideration of a Gangman irrespective of his being qualified or not from being considered for appointment to the post of Bricklayer. There is no rule which prohibits the use of a Gangman as a Bricklayer when he is qualified as a Bricklayer. In the exigencies of administration, an employee may be deployed to do a job which is beyond the charter of duties assigned to the post which he holds substantively. There is nothing wrong with such arrangement which normally is a short term arrangement. It becomes unusual if it becomes a permanent arrangement. If a person who is eligible to be appointed as a Bricklayer but for his previous appointment as Gangman in which capacity he worked for just about a month is made to work without proper record as Bricklayer for rest of his career, then it is quite unusual and arbitrary. Besides it becomes quite unjust and unfair if he is not paid what are his dues as a Bricklayer for want of record as Bricklayer or for the reason that the available records show him as Gangman only. It is not the rule of law; it is an abuse of law inasmuch as a rule is made to discriminate and exploit a low paid not so well-informed employee mercilessly.
10. It is the duty and responsibility of the respondents to satisfy themselves going beyond the service book and other records, whether such is the case; if it is so, then to ensure that justice is done to the applicant. The applicant submits that he worked as Gangman only for about a month and rest of his service after being appointed as Gangman he is working as Bricklayer. As his service book and some other records show him as Gangman his working as a Bricklayer since his appointment as Gangman, can be verified in the following manner: Get from the applicant a list of sites where he worked as Bricklayer since March, 1989. Select a few sites at random for physical verification. Check with those who made him to work as Bricklayer as also with those who worked with him as to the veracity of the submission made by the applicant. The entire exercise should be done in the presence of the applicant. Exhibits 7 and 8 will come handy to start this exercise. It is a matter of conscience for those who took the work of a Bricklayer from the applicant to state the truth. The respondents, in the interest of justice, should take the suggested course of action in all sincerity.
11. In view of the above, the O.A. is partly allowed. The respondents are directed to verify whether the applicant worked as Bricklayer even when service book and some other records show him as Gangman and if it is found that he really worked as Bricklayer even after becoming officially Gangman, then to take appropriate consequential actions to give him justice within a period of six months from the date of receipt of a copy of this order. No order as to costs.