Dismissed

The Visakhapatnam v. v Parvathi

Andhra Pradesh HC15 Sept 2021WA/463/2021

Case brief

AI extract

What is this about?

A writ appeal challenging an order granting pension to a retired Visakhapatnam Port Trust employee based on casual service. The High Court dismissed the appeal, deeming the lower court's interpretation consistent with the requirement to consider employee welfare and continuity of service under a 2004 Ministry circular.

What did the court decide?

The writ appeal was dismissed with no costs.

The Visakhapatnam Vs v Parvathi — Pension and Retirement Benefits | Andhra Pradesh HC (2021)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON’BLE MR. JUSTICE NINALA JAYASURYA

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WRIT APPEAL No. 463 of 2021

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(Taken up through video conferencing)

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The Visakhapatnam Port Trust, rep. by its Chairman, Port Area, Visakhapatnam and another.

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…..Appellants

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Versus

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V. Parvathi, W/o. late Rama Rao, Hindu, aged about 65 years, Occ: Retired Employee, R/o.C/o.M.Surya Rao, D.No.3-321, Street No.10, Adarsa Nagar, Daily Form (Post), Visakhapatnam. …. Respondent

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Counsel for the appellants : Mr. P. Sri Ram Counsel for the respondent : Ms. A. Padma

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ORAL ORDER

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Dt.15.09.2021

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(Per Arup Kumar Goswami, CJ)

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Heard Mr. P. Sri Ram, learned counsel for the appellants. Also heard Ms. A. Padma, learned counsel for the respondent.

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This writ appeal is directed against an order dated 25.03.2021 passed by the learned Single Judge in W.P.No.4367 of 2015 allowing the writ petition and directing the appellants herein to consider the case of the writ petitioner, for calculation of monthly pension by taking into consideration of 50% of casual service rendered by her as ‘Khalasi’ in Medical Department in Visakhapatnam

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Port Trust from 11.10.1996 to 04.05.1997 and pass appropriate reasoned orders.

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The case of the writ petitioner, in short, as presented in the writ petition is that she had worked as casual labour (Khalasi) from 11.10.1996 to 04.05.1997 spreading over a period of 6 months 25 days. Her service was regularized as Khalasi in Medical Department of Visakhapatnam Port Trust on 05.05.1997 through proceedings dated 20.05.1997 and that the writ petitioner attained superannuation on 31.01.2007. Thus, the petitioner is having total service of 9 years 8 months 26 days from the date of regularization.

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On such superannuation, the petitioner was granted gratuity but was not sanctioned monthly pension on the ground that she did not complete 10 years of service for sanction of pension.

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The petitioner had relied upon a circular dated 05.07.2004, issued by the Ministry of Shipping (Port Wing) in support of her contention for grant of pension. It is appropriate to extract the aforesaid Circular:

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“Government of India Ministry of Shipping (Ports Swing)

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F.No.A-38011/8/2004: P.E.I.(Pt) New Delhi, the 5^th July, 2004

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The Chairmen of all Major Port Trusts and Dy. Chairmen of Dock Labour Boards.

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Subject: Counting of casual/daily rated services for pensioner benefits – Demand of Major federations of Port & Dock Workers – regarding.

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Sir,

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I am directed to state that the common Pension Regulations for the Port & Dock Employees are under consideration of the Government, Pending finalization of these regulations, executive orders were issued vide this Ministry’s letter No.A-38011/4/98-P.E.I dated 3.1.2001 allowing certain pensionery benefits to the Port and dock employees retiring under these regulations.

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2. Further, during the meeting held under the chairmanship of Secretary (Shipping) with the representatives of the Major Federations of Port & Dock Workers, the Federation demanded that the 50% of the period of casual service for the purpose of pension of the employees who were absorbed as regular employees in continuation may be counted for pension purposes.

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3. Accordingly the matter has been considered in the Ministry and it has been decided to regulate the casual service towards pensioner benefits as detailed below.

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“Counting of casual daily rated service paid from contingencies with regular service”

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50% (half) of the period of daily rated/casual service or service or service paid from contingencies in types of works requiring services of whole time employment and are paid on monthly basis shall count as qualifying service if they are found fit and appointed to regular establishment, provided

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(1) The daily rated or casual service paid from contingencies should have been continuous and followed by absorption in regular employment without a break.

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(2) Service paid from contingencies should have been in a job involving whole time employment and not part time or for a portion of a day.

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(3) The period of casual/daily/contingent service is for a period of not less than 240 days in 12 calendar months.

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(4) Casual service should have been in a type of work or job for which regular posts could have been sanctioned.

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(5) The service should have been one for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and which though not analogous to the regular scale of pay should bear some relation in the matter of pay to those being

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paid for similar jobs being performed by staffs to regular establishment.

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(6) The Head of the Administration will be responsible for verification of authentic records of service.

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(7) This issues with the approval of Finance Wing vide their Dy.No.363/04 dated 1.6.2004.

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Yours faithfully,

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(N.BARIK) Under Secretary to the Govt. of India”

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Mr. P. Sri Ram contends that the learned Single Judge did not appreciate the facts correctly inasmuch as the petitioner had done intermittent service and not continuous service as a casual employee and as such did not meet the eligibility criteria of continuous service as laid down in Clause 3(1) of the circular. He further submits that according to the appellants, the writ petitioner had rendered casual service only for a period of 206 days and in the aforesaid view of the matter, by no stretch of imagination, can it be said that the writ petitioner had fulfilled Clause 3 (3) of the circular dated 05.07.2004 requiring a period of not less than 240 days for counting of casual / daily rated / contingent service with regular service. It is further submitted that in the event of accepting the contention raised by the writ petitioner, it would open flood gates for similar requests from casual employees, and therefore, the order, which, on the face of it, is not sustainable in law, is liable to be interfered with.

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Ms. A. Padma, learned counsel for the writ petitioner submits that no interference is called for with the order under challenge and the appeal is liable to be dismissed.

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We have considered the submissions of the learned counsel for the parties and perused the materials on record.

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According to the appellants, the writ petitioner had fallen short of one (1) month and four (4) days in having the requisite service of 10 years from the date of regularization to become eligible to receive pension.

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In the Counter-affidavit, a statement is made that the writ petitioner was appointed as Casual labour w.e.f. 11.10.1996 to 31.12.1996 for a period of three months, on compassionate grounds and that she has been appointed in the same capacity again from time to time upto 04.05.1997, when she was appointed on regular basis. If the appointment was made on compassionate grounds, it defies logic as to why the petitioner should have been appointed as a casual labour in the first place. In our considered opinion, if the appointment was on compassionate grounds, the same should have been on regular basis. Though it is submitted by Mr. P. Sri Ram that the writ petitioner had been appointed intermittently before regularisation , there is no indication in the affidavit as to what was the break in service from 31.12.1996 to 04.05.1997 and therefore, we are not impressed with the argument that casual service rendered by the petitioner was not continuous.

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If the regularization was effected after another 34 days, the writ petitioner would have completed 240 days from 11.10.1996 and in that event, she would have been entitled to 120 days to count towards qualifying service. We are of the opinion that these factors ought to have been considered by the appellants, as they have an obligation towards welfare of the employees.

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In the given facts and circumstances, we are of the view that to deny pension would be wholly inequitable and therefore, we are not inclined to interfere with the order of the learned Single Judge. Accordingly, the appeal fails and is dismissed. No costs.

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Pending miscellaneous applications, if any, shall stand dismissed.

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ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J

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BLV

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON’BLE MR. JUSTICE NINALA JAYASURYA

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WRIT APPEAL No.463 of 2021

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15^th day of September, 2021

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BLV

The Visakhapatnam v. v Parvathi

Case brief

What is this about?

What did the court decide?

The Visakhapatnam v. v Parvathi

Case brief

What is this about?

What did the court decide?

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