K. Gnanamba Vs. Union of India and Others - Court Judgment

Excerpt:
service - pensionary benefits - rule 31 of railway service (pension) rules, 1993 - petitioner is widow of deceased casual labourer who died pending his application seeking pensionary benefits - service to be qualified service in order to entitle employee to pension - conditions laid down in rule 31 not completely fulfilled by deceased - deceased's service cannot be considered for computation for qualifying service - claim of pension cannot stand. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - 9. the lr applicant submits that she is a poor widow and she has no other means of livelihood and hence she should be paid family pension. it is a well settled principle of law that where the law is not clear, recourse must be taken to purposive interpretation. one may well say if the text is the texture, context is what gives the colour. that interpretation is best which makes the textual interpretation match the contextual. a statute is best interpreted when we know why it wasenacted. and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an act by becoming an hindrance in the interpretation of the same'.9. the aforementioned note which has been inserted by way of explanation, therefore, cannot be read as an independent provision and the same has to be read with the main provision in the context of rule 31 and unless conditions laid down therein are satisfied, the husband of the petitioner couldnot have claimed pensionary benefits in terms thereof.orders.b. sinha, cj1. this writ petition has been filed by the wife of k. srinivasan since deceased claiming pensionary benefits. the petitioner's husband joined as casual labourer and worked in that capacity in the construction wing from 1-1-1956 to 31-3-1973. he was appointed as regular lascar from 1-4-1973 and retired on 31-7-1978. he was not given any pensionary benefits. he filed oa no.1230 of 1998 before the central administrative tribunal. during pendency of the said application he died on 29-3-1999 and the petitioner herein was substituted in his place. the learned tribunal in the impugned order dated 27-9-1999 rejected the submission of the petitioner herein in the following terms:'7. ..... the applicant cannot request forcounting the period of casual service for the purpose of pension. it is further stated in the reply that the judgment of the apex court in civil appeal no.4643 of 1992 dated 26-4-1998 (union of india v. kg. radha krishna phanikhar and others) had confirmed that project casual labourer service period prior to 1-1-1981 cannot be counted as qualifying service for pension. the above apex court judgment is not commented upon by the applicant either in his original application or by filing a rejoinder. but the applicant submits that rule 31 provides for counting of casual service also put in by the candidate in open line or in project. the rule has been formed under article 309 of the constitution of india. hence it is equally applicable to project casual labourers. as the applicant had been paid from contingencies in the project his service period when he worked as casual labourer in project has to be counted for fixing pension and other pensionary benefits.8. the supreme court had held that temporary status for a project casual labourer can be counted for the period obtaining on or after 1-1-1981. the applicant had retired much earlier to 1-1-1981. contingent payment for a casual labourer is permitted both in revenue expenditure and project estimates. just because he was paid from contingency in construction estimates, he should be paid pensionary benefits counting that casual service is not a proper submission. the rule 31 means that casual labourers only if paid from contingencies in revenue expenditure they are eligible for counting that service period for purpose of pension. very fact that he was a project casual labour and that even if he is paid from contingent expenditure in project estimates he cannot request for counting that service for the purpose of determining the qualifying service as per rule 31 referred to above. the applicant relies upon the judgment of the apex court reported in : (1999)illj238sc (v. kasturi v. m.d. state bank of india, bombay). that citation has no application in this case.9. the lr applicant submits that she is a poor widow and she has no other means of livelihood and hence she should be paid family pension.10. the authorities have power to relax in certain cases for payment of family, pension as incorporated in rule 107 of railway services (pension) rules, 1993. the applicant may submit a detailed representation for granting her family pension on the basis of that rule. if such a representation is received, the authorities should dispose of the same within a very short period sympathetically and on humanitarian grounds.11. with the above observation in para 10 supra, the oa is dismissed. no order as to costs.'the said period during which the husband of the petitioner worked was as a project casual labour and he having not completed the period of qualifying service, he was not entitled therefor.2. ms. s. thripura sundari, the learned counsel appearing on behalf of the petitioner inter alia submitted that having regard to the provisions of rule 31 of the railway services (pension) rules, 1993 (for short 'the rules') the petitioner's husband was entitled to pensionary benefits.mr. r.s. murthy appearing on behalf of the respondents, on the other hand, submitted that rule 31 has no application in the instant case and that the central government has brought out a scheme for the said purpose with effect from 1-1-1981.3. it is not in dispute that the petitioner's husband retired as a regular laskar in group d post on 31-7-1978 i.e.., much prior to the aforementioned scheme dated 1-1-1981 came into force as a result whereof a temporary status had been given to the project casual labourers. rule 31 of the rules reads thus:'31 counting of service paid from contingencies :--in respect of a railway servant, in service on or after the 22nd day of august, 1969, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to the following conditions, namely :(a) the service paid from contingencies has been in a job involving whole-time employment;(b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned as posts of malis, chowkidars and khalasis;(c) the service should have been such for which payment has been made either on monthly-rate basis or on daily rates computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, bears some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;(d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break :provided that the weightage for past service paid from contingencies shall be limited to the period after 1st january, 1961 subject to the condition that authentic records of service such as pay bill, leave record or service book is available.note :--(1) the provisions of this rule shall also apply to casual labour paid from contingencies.(2) the expression 'absorption in regular employment' means absorption against a regular post'.4. there cannot be any doubt whatsoever that before the service rendered by a railway servant is considered for computation for qualifying service entitling him to pensionary benefits all the conditions laid down therein must be fulfilled. it is not the case of the petitioner herein that all the conditions laid down in rule 31 have been fulfilled. rule 20 of the rules provides for qualifying service. the question came up for consideration before the apex court in union of india v. k.g. radhakrishna panickar, : [1998]3scr38 . the casual labourers did not come within the purview of the said rule whereafter a scheme was made with effect from 1-1-1981. theapex court traced the history of demand by the project casual labourers resulting in issuance of government order, provisions made in the railway manual as also its earlier decisions and held:'12. ....as regards project casual labour this benefit of being treated as temporary became available only with effect from 1-1-1981 under the scheme which was accepted by this court in inder pal yadav. before the acceptance of that scheme the benefit of temporary status was not available to project casual labour. it was thus a new benefit which was conferred on project casual labour under the scheme as approved by this court in inder pal yadav : (1985)iillj406sc and on the basis of this new benefit project casual labour became entitled to count half of the service rendered as project casual labour on the basis of the order dated october 14, 1980 after being treated as temporary on the basis of the scheme as accepted in inder pal yadav.....'5. reliance placed on the interpretation to the note appended to rule 31 of the rules is not apposite.6. the note appended to a scheme framed under the statute must be construed having regard to the fact that it is a purposive enactment. it is a well settled principle of law that where the law is not clear, recourse must be taken to purposive interpretation. in reserve bank of india v. peerless co., : [1987]2scr1 , it was held:'interpretation must depend on the text and the context. they are the bases of interpretation. one may well say if the text is the texture, context is what gives the colour. neither can be ignored. both are important. that interpretation is best which makes the textual interpretation match the contextual. a statute is best interpreted when we know why it wasenacted. with this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. if a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. with these glasses we must look at the act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire act. no part of a statute and no word of a statute can be construed in isolation. statutes have to be construed so that every word has a place and everything is in its place.'7. in anantha kumar v. state of west bengal, 1999 (4) slr 661, a division bench of the calcutta high court has noticed the authorities as regards purposive construction. in francis bennion statutory interpretation, second edition, as regards the rule of 'purposive construction', it has been stated at section 304 as under:'a purposive construction of an enactment is one which gives effect to the legislative purpose by--(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in the code called apurposive-and-literal construction).(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the code called a purposive-and-strained construction)'.8. the meaning of 'note' as per p. ramanatha aiyar's law lexicon, 1997edition is 'a brief statement of particulars of some fact', a passage or explanation. 'explanation' has various functions. in s. sundaram v. r. pattabhiraman, : [1985]2scr643 , it has been held:'thus, from a conspectus of the authorities referred to above, it is manifest that the object of an explanation to a statutory provision is--(a) to explain the meaning and intendmentof the act itself;(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant objectwhich it seems to subserve;(c) to provide an additional support to the dominant object of the act in order to make it meaningful andpurposeful;(d) an explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the explanation, in order to suppress the mischief and advance the object of the act it can help or assist the court in interpreting the true purport and intendment of the enactment; and(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an act by becoming an hindrance in the interpretation of the same'.9. the aforementioned note which has been inserted by way of explanation, therefore, cannot be read as an independent provision and the same has to be read with the main provision in the context of rule 31 and unless conditions laid down therein are satisfied, the husband of the petitioner couldnot have claimed pensionary benefits in terms thereof.10. for the reasons aforementioned there is no merit in this writ application which is accordingly dismissed. there shall be no order as to costs.

Judgment:
ORDER

S.B. Sinha, CJ

1. This writ petition has been filed by the wife of K. Srinivasan since deceased claiming pensionary benefits. The petitioner's husband joined as casual labourer and worked in that capacity in the construction wing from 1-1-1956 to 31-3-1973. He was appointed as regular lascar from 1-4-1973 and retired on 31-7-1978. He was not given any pensionary benefits. He filed OA No.1230 of 1998 before the Central Administrative Tribunal. During pendency of the said application he died on 29-3-1999 and the petitioner herein was substituted in his place. The learned Tribunal in the impugned order dated 27-9-1999 rejected the submission of the petitioner herein in the following terms:

'7. ..... The applicant cannot request forcounting the period of casual service for the purpose of pension. It is further stated in the reply that the judgment of the Apex Court in Civil Appeal No.4643 Of 1992 dated 26-4-1998 (Union of India v. KG. Radha Krishna Phanikhar and others) had confirmed that project casual labourer service period prior to 1-1-1981 cannot be counted as qualifying service for pension. The above Apex Court judgment is not commented upon by the applicant either in his Original Application or by filing a rejoinder. But the applicant submits that Rule 31 provides for counting of casual service also put in by the candidate in open line or in project. The rule has been formed under Article 309 of the Constitution of India. Hence it is equally applicable to project casual labourers. As the applicant had been paid from contingencies in the project his service period when he worked as casual labourer in project has to be counted for fixing pension and other pensionary benefits.

8. The Supreme Court had held that temporary status for a project casual labourer can be counted for the period obtaining on or after 1-1-1981. The applicant had retired much earlier to 1-1-1981. Contingent payment for a casual labourer is permitted both in revenue expenditure and project estimates. Just because he was paid from contingency in construction estimates, he should be paid pensionary benefits counting that casual service is not a proper submission. The Rule 31 means that casual labourers only if paid from contingencies in revenue expenditure they are eligible for counting that service period for purpose of pension. Very fact that he was a project casual labour and that even if he is paid from contingent expenditure in project estimates he cannot request for counting that service for the purpose of determining the qualifying service as per Rule 31 referred to above. The applicant relies upon the Judgment of the Apex Court reported in : (1999)ILLJ238SC (V. Kasturi v. M.D. State Bank of India, Bombay). That citation has no application in this case.

9. The LR applicant submits that she is a poor widow and she has no other means of livelihood and hence she should be paid family pension.

10. The authorities have power to relax in certain cases for payment of family, pension as incorporated in Rule 107 of Railway Services (Pension) Rules, 1993. The applicant may submit a detailed representation for granting her family pension on the basis of that rule. If such a representation is received, the authorities should dispose of the same within a very short period sympathetically and on humanitarian grounds.

11. With the above observation in para 10 supra, the OA is dismissed. No order as to costs.'

The said period during which the husband of the petitioner worked was as a project casual labour and he having not completed the period of qualifying service, he was not entitled therefor.

2. Ms. S. Thripura Sundari, the learned Counsel appearing on behalf of the petitioner inter alia submitted that having regard to the provisions of Rule 31 of the Railway Services (Pension) Rules, 1993 (for short 'the Rules') the petitioner's husband was entitled to pensionary benefits.

Mr. R.S. Murthy appearing on behalf of the respondents, on the other hand, submitted that Rule 31 has no application in the instant case and that the Central Government has brought out a scheme for the said purpose with effect from 1-1-1981.

3. It is not in dispute that the petitioner's husband retired as a regular laskar in group D post on 31-7-1978 i.e.., much prior to the aforementioned scheme dated 1-1-1981 came into force as a result whereof a temporary status had been given to the project casual labourers. Rule 31 of the Rules reads thus:

'31 Counting of service paid from contingencies :--In respect of a railway servant, in service on or after the 22nd day of August, 1969, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to the following conditions, namely :

(a) the service paid from contingencies has been in a job involving whole-time employment;

(b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned as posts of malis, chowkidars and khalasis;

(c) the service should have been such for which payment has been made either on monthly-rate basis or on daily rates computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, bears some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;

(d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break :

Provided that the weightage for past service paid from contingencies shall be limited to the period after 1st January, 1961 subject to the condition that authentic records of service such as pay bill, leave record or service book is available.

Note :--(1) The provisions of this rule shall also apply to casual labour paid from contingencies.

(2) The expression 'absorption in regular employment' means absorption against a regular post'.

4. There cannot be any doubt whatsoever that before the service rendered by a railway servant is considered for computation for qualifying service entitling him to pensionary benefits all the conditions laid down therein must be fulfilled. It is not the case of the petitioner herein that all the conditions laid down in Rule 31 have been fulfilled. Rule 20 of the Rules provides for qualifying service. The question came up for consideration before the Apex Court in Union of India v. K.G. Radhakrishna Panickar, : [1998]3SCR38 . The casual labourers did not come within the purview of the said rule whereafter a scheme was made with effect from 1-1-1981. TheApex Court traced the history of demand by the project casual labourers resulting in issuance of Government Order, provisions made in the Railway Manual as also its earlier decisions and held:

'12. ....As regards Project Casual Labour this benefit of being treated as temporary became available only with effect from 1-1-1981 under the scheme which was accepted by this Court in Inder Pal Yadav. Before the acceptance of that scheme the benefit of temporary status was not available to Project Casual Labour. It was thus a new benefit which was conferred on Project Casual Labour under the scheme as approved by this Court in Inder Pal Yadav : (1985)IILLJ406SC and on the basis of this new benefit Project Casual Labour became entitled to count half of the service rendered as Project Casual Labour on the basis of the order dated October 14, 1980 after being treated as temporary on the basis of the scheme as accepted in Inder Pal Yadav.....'

5. Reliance placed on the interpretation to the note appended to Rule 31 of the Rules is not apposite.

6. The note appended to a scheme framed under the statute must be construed having regard to the fact that it is a purposive enactment. It is a well settled principle of law that where the law is not clear, recourse must be taken to purposive interpretation. In Reserve Bank of India v. Peerless Co., : [1987]2SCR1 , it was held:

'Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it wasenacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.'

7. In Anantha Kumar v. State of West Bengal, 1999 (4) SLR 661, a Division Bench of the Calcutta High Court has noticed the authorities as regards purposive construction. In Francis Bennion Statutory Interpretation, Second edition, as regards the rule of 'purposive construction', it has been stated at Section 304 as under:

'A purposive construction of an enactment is one which gives effect to the legislative purpose by--

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in the Code called apurposive-and-literal construction).

(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)'.

8. The meaning of 'note' as per P. Ramanatha Aiyar's Law Lexicon, 1997Edition is 'a brief statement of particulars of some fact', a passage or explanation. 'Explanation' has various functions. In S. Sundaram v. R. Pattabhiraman, : [1985]2SCR643 , it has been held:

'Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an explanation to a statutory provision is--

(a) to explain the meaning and intendmentof the Act itself;

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant objectwhich it seems to subserve;

(c) to provide an additional support to the dominant object of the Act in order to make it meaningful andpurposeful;

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment; and

(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same'.

9. The aforementioned note which has been inserted by way of explanation, therefore, cannot be read as an independent provision and the same has to be read with the main provision in the context of Rule 31 and unless conditions laid down therein are satisfied, the husband of the petitioner couldnot have claimed pensionary benefits in terms thereof.

10. For the reasons aforementioned there is no merit in this writ application which is accordingly dismissed. There shall be no order as to costs.