Central Administrative Tribunal - Hyderabad
M Venkateswara Rao vs M/O Railways on 2 April, 2024
1
OA.No.93/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATION NO.020/00093/2020
HYDERABAD, this the 02nd day of April, 2024
CORAM:
HON'BLE DR. LATA BASWARAJ PATNE, JUDICIAL MEMBER
M.Venkateswara Rao, S/o Late Appa Rao
Aged 57 years, Group 'C'
Hospital Attendant
Health Unit Eluru Railway Station
Vijayawada Division
South Central Railway. .....Applicant
(By Advocate Smt. A.V.S.Laxmi)
Vs.
1. Union of India, Rep. by General Manager
South Central Railway, III Floor
Rail Nilayam, Secunderabad
Telangana State - 500071.
2. Senior Divisional Personnel Officer
Vijayawada Division, Divisional Railway Manager Office
Gandhi Nagar, Vijayawada
South Central Railway
Andhra Pradesh-520001, India.
3. Senior Divisional Medical Superintendent
Vijayawada Division, South Central Railway
Andhra Pradesh - 520001.
4. Medical Superintendent
Eluru Health Unit, Eluru Railway Station
Vijayawada Division, South Central Railway
Andhra Pradesh - 520001. ....Respondents
(By Advocate Sri V.Vinod Kumar, Senior Panel Counsel for Central
Government)
ORAL ORDER
PER: HON'BLE DR. LATA BASWARAJ PATNE, JUDICIAL MEMBER
1. By this Original Application, the applicant has prayed the following reliefs:-
2 OA.No.93/2020"To quash and set aside the order vide Memorandum No.SCR/P/BZA/VIII/CPGRAMS dated 02.08.2019 denying the benefits of pension and other benefits on par with the similarly situated applicants who were benefited in OA Nos.186 of 2016 of Hon'ble CAT, Bangalore, and in another OA No.839 of 2016 of Hon'ble CAT, Hyderabad."
2. The facts of the case in a nutshell are as under:
After fulfilling all the formalities such as Medical Examination and payment of Security deposit of Rs.200/-, the applicant was appointed as Vendor on 25.11.1980 on commission basis at VRR/SLO on temporary basis. On 11.03.1997, while he was working by the Train No.7007, he was hit by the train door and his right thumb was seriously injured and was directed to M.S./R.H/RJY for further treatment. On 25.05.1998 a screening committee was appointed for absorption of Commission Vendors and the applicant was directed to attend the same. Another Committee was appointed on 18.11.2002 but the above said committee had not appointed anybody. On 22.08.2005, he was sent for Special Medical Examination. On 13.02.2006, his temporary services were regularized. Presently, he is working as Hospital Attendant, Health Unit, Eluru Railway Station. On 16.07.2019, the applicant has submitted representation to the respondents duly giving citation of the Hon'ble Courts' judgments to extend the benefit of GPF and Old Pension Scheme after calculating the temporary service rendered by him from 25.11.1980. On 02.08.2019 while disposing the representation of the applicant, the respondents stated that since the applicant has not been engaged as casual labour as per the records available in their office, the question of counting of casual labour service for the purpose of pensionary benefits does not arise. Aggrieved by the same, the applicant has filed the present OA.3 OA.No.93/2020
3. After notice, the respondents have appeared through their counsel and have filed reply statement opposing the relief of the applicant on the ground that the applicant's services came to be regularised in the year 2006 and he is covered under New Pension System(NPS). It is further submitted that the applicant was appointed as vendor on commission basis and thereafter he was issued with appointment order in the year 2005 as it is issued afresh on temporary basis and same bas been confirmed in 2006. Once the applicant has accepted the said appointment order, he cannot now claim of his earlier services rendered as commission vendor. Hence, the respondents contended that they have rightly rejected the applicant's claim.
4. Heard both sides and perused the materials placed on record.
5. In support of his claim, learned counsel for the applicant has straight away relied upon the judgment dated 31.10.2022 passed by the Hon'ble Supreme Court in Union of India & others Vs. Munshi Ram in Civil Appeal No.2811 of 2022 along with other connected Civil Appeals wherein the Hon'ble Apex Court had considered the issue at length and a direction has been issued to the Northern Railways who are ready to accept the judgment passed by the Hon'ble Supreme Court in the similar lines wherein when the Commission Vendors\Bearers' services have been absorbed and regularised for their services as Commission Vendors/Bearers, their 50% services has to be calculated followed with the regularisation for grant of pensionary benefits and hence, learned counsel for the applicant contended that the issue involved in the matter is no more res-integra and consequently covered by these judgments. Though the applicant has been issued with the appointment in the year 2005 and the 4 OA.No.93/2020 same has been regularised/confirmed in the year 2006 but the applicant has been considered for the said post considering the services rendered by him as a Commission Vendor/Bearer followed with his seniority which is prepared to give appointment to the Commission Vendors/Bearers in which the applicant is also one of the beneficiary.
6. On the other hand, leaned counsel for the respondents vehemently opposed the claim of the applicant stating that it is not in dispute that the applicant has been appointed as a Commission Vendor/Bearer but the said post was not notified by the employer and hence, there is no relationship between the applicant and the respondent department as an employee and employer. When the applicant came to be appointed afresh by granting temporary appointment in the year 2005 and the same has been confirmed in the year 2006 after accepting all the conditions in the appointment letter, now he cannot turn around without challenging his appointment. He further contended that the ratio laid down by the Hon'ble Supreme Court in the matter of Munshi Ram is not at all applicable in the applicant's matter and it is not relevant to the South Central Railways. With this, learned counsel for the respondents is trying to distinguish the judgment passed by the Hon'ble Supreme Court.
7. It is not in dispute that the applicant came to be appointed as a Commission Vendor/Bearer on 25.11.1980 and he continued with the said service thereafter.
It is to be noted that the Railways have issued a Serial Circular No.216/2005 dated 21.12.2005 and taken a decision of absorption of Commission Vendors/Bearers over Indian Railway. Accordingly, Board has taken a decision that all Commission Vendors/Bearers should be regularised with complete 5 OA.No.93/2020 relaxation of educational qualifications instead of ability to read and write.
However, not more than two opportunities should be given to an individual for such regularization. Such individuals who do not avail the maximum permissible two opportunities should be treated as 'not interested' and should be debarred. As admitted by the respondents, followed with the said serial circular, the applicant was screened and empanelled for absorption in Group-D post as Trackman in Engineering Department subject to passing B-1 medical examination. Accordingly, the applicant was subjected to medical examination where he was found unfit in B-1 medical classification and found fit in B-2 medical classification. Therefore, to find out suitable alternative post as per the medical fitness of the applicant, he was re-screened and absorbed as Safaiwala in Medical department in scale Rs.2550-3200 RS(RP) and was posted under Health & Malaria Inspector/Samarlakota vide office order dated 20.03.2006 and applicant joined the services of Safaiwala on 27.03.2006. It is to be noted that the Board has taken a decision in respect of absorption of Commission Vendors/Bearers over Indian Railway but not followed the counting of half of the past service rendered by the employees who were working as Commission Vendors/Bearers. It is to be noted that the issue has been considered at length by the Hon'ble Supreme Court in the matter of Munshi Ram in its detailed judgment dated 31.10.2022 wherein the Hon'ble Supreme Court has referred the orders passed by them on earlier occasion in the similar lines which is reproduced as below:
3.There have been a series of litigations on the issue of absorption of the Commission Vendors in the Railways. On 13.12.1983, this Court disposed of Writ Petition (Civil) No. 6804-05/1982 (Saital Singh v. Union of India) wherein a direction was issued for progressive absorption of the Commission Bearers/Vendors in term of para 3 of Memorandum dated 6 OA.No.93/2020 13.12.1976. Subsequently, in an order dated 8.9.1987 passed in Criminal Miscellaneous Petition No. 1670/1987 in Writ Petition No. 31364 of 1986 and other allied writ petitions in the case of T.L Madhavan, General Secretary, AIRCS Workers Union v. Union of India, reported in 1988 Supp SCC 437, a further direction was issued regarding the progressive absorption of all persons working as Commission Bearers/Vendors on various railway platforms belonging to the Central Railway and South- Central Railway in terms of the same memorandum dated 13.12.1976 "as and when vacancies to the posts of Bearers in the Railway Catering Service occur". It was further reiterated that as already directed the Railways would first absorb all the Bearers registered in accordance with the aforesaid memorandum and thereafter the Vendors who are registered and until all the Bearers and Vendors are accordingly absorbed, the Railway Administration shall not recruit or appoint any person either as a Bearer or Vendor on permanent basis in the Railway Catering Service from any other source.
4. Learned Single Judge of the High Court in Writ Petition (Civil) No. 5175/1998 (Gurdas Ram & Others v. Union of India) was dealing with a batch of writ petitions by Commission Vendors, who sought the relief of regularization, and in the alternative, absorption in Group 'C' posts. By judgment and order dated 5.11.2012, the learned Single Judge negatived the plea of regularization, however, the other relief, viz., absorption against vacant Group 'C' posts was allowed, provided they had not crossed the age of 59 years. The respective original writ 3 petitioners - respondents herein all were absorbed pursuant to the above order of the learned Single Judge in Group 'C' posts in 2015.
5. They then approached the Central Administrative Tribunal with O.A. No. 219/2016 praying for further consequential relief of grant of pensionary/retirement benefits. It was their case before the CAT that the total service of each of the applicants rendered prior to their absorption in the Railways should be counted towards "qualifying service" for the purpose of such retirement/pensionary benefits. By judgment and order dated 12.02.2016, the CAT dismissed the said OA by holding that since the earlier judgment of the learned Single Judge declined the prayer of regularization, it was not possible to entertain the plea for counting the past service without questioning the absorption orders, even for pensionary benefits.
6. However, thereafter another Bench of the Tribunal in O.A. No. 4079/2016 filed by one Munshi Ram (respondent in Civil Appeal No. 2811/2022), after following the decision of the Ernakulam Bench of the CAT dated 4.6.2014 in OA No. 417/2013 and one other decision of the same Bench, where identically situated applicants were granted the relief of pensionary benefits, allowed the said OA 4079/2016. The judgment and order passed by the CAT dismissing the OA and refusing to grant any pensionary benefits to the Commission Vendors who were subsequently absorbed by treating their earlier service rendered as 7 OA.No.93/2020 Commission Vendors, the original applicants filed the present Writ Petition Nos. 12073/2016 and Writ Petition No. 3307/2017 before the High Court.
...................................................................................................
12.It is submitted that it is an admitted position that the Commission Vendors in the present case have not completed 10 years of service after absorption and before retirement, which is mandatory for receiving pensionary benefits. In the submitted that in fact in the case of one of the appellants/petitioners - Munshi Ram, he has served only for a period of three and half months approximately between his absorption on 16.07.2015 and superannuation on 31.10.2015.
13. It is submitted that as such the respective Commission Vendors who are subsequently absorbed in the Railways are claiming parity with Casual Labourers and accordingly are claiming that 50% of their service rendered as Commission Vendors prior to their absorption is to be counted for qualifying service for pensionary benefits which is being provided to the Casual Labourers.
14. It is submitted that therefore the question which is required to be considered is, whether can the Commission vendors claim the benefit of their past service at par with the Casual Labourers? It is submitted that to appreciate the above, the difference between the status of Commission vendors and the Casual Labourers is required to be considered. The fundamental difference between the status of 7 Commission Vendors and Casual Labourers is explained by Ms. Madhavi Divan in the chart which is as under:
Mode of Appointment Casual Labourer Commission
Vendor/Bearer
Done by Sr. Subordinate No such provision.
authorized to recruit
after sanction of
General Manager.
Age Limit 18-28 years relaxable up Not defined.
to 05 yrs.
Wages Daily rate wages Work on commission
governed by Minimum basis after sale of
wages Act. products.
Regularization Absorption against No provision for their
permanent post after regularization in
attaining Temporary railway service.
Status following due Respondents in this
procedure of screening case were absorbed in
by a committee of 03 railway service in
officers. compliance of Delhi
High Court's Order.
Emoluments Wages, transport Work on commission
allowance, leave, basis.
8
OA.No.93/2020
medical treatment,
Holidays, travel
concessions
Seniority Seniorities are No seniority is
maintained and maintained. They work
promotions in higher at different stations on
grade are done commission basis.
accordingly.
Working hours Fixed under hours of No working Hours
employment fixed.
Regulations.
Termination from Disciplinary and appeal Not applicable.
service rules are applicable on
them.
15. It is further submitted that the Commission Vendors were engaged on a purely contractual basis. The relevant terms of the proforma contractual agreement entered into with the Commission Vendors are as follows:
i. Clause 1: Commission vendors shall work on commission basis [@Pg. 34 in Application for Addl. Docs. i.e. IA No. 137388/2021].
xxx xxx xxx ii. Clause 8: Open to either party to determine this agreement by giving one month's notice without assigning any reason and without any compensation [@Pg. 35 in Application for Addl. Docs. i.e. IA No. 137388/2021].
iii. Clause 9: Commission vendors are not entitled to any remuneration except commission on sale of articles [@Pg. 35 in Application for Addl. Docs. i.e. IA No. 137388/2021].
xxx xxx xxx iv. Clause 13: Administration/Railways shall supply the articles to be sold by commission vendors to the public travelling by train [@Pg. 35 in Application for Addl. Docs. i.e. IA No. 137388/2021].
xxx xxx xxx v. Clause 16: Commission vendors shall not be treated as Railway servant for any purpose [@Pg. 36 in Application for Addl. Docs. i.e. IA No. 137388/2021].
16.It is submitted that from the above, it can be seen that there was no master-servant relationship contemplated between a Commission Vendor and the employer - Northern Railways. The remuneration was only in the form of commission and further on no count was a Commission Vendor was treated as a railway servant.
17. It is submitted that on the other hand, the Casual Labourers stood on different footing. The provisions relating to Casual Labourers found in a 9 OA.No.93/2020 separate Chapter XX in the Railway Manual (IREM) show the difference in status, which are as under:
(i) Rule 2001 [@page 30 in Application for Addl. Docs. i.e. IA No. 137388/2021]:
2001: (I) Definition of Casual labour - Casual labour refers to labour whose employment is intermittent, Sporadic or extends over short period or continued from one work to another. Labour of this kind is normally recruited from the nearest available source. They are not ordinarily liable to transfer. The conditions applicable to permanent and temporary staff do not apply to casual labour. Casual labour on Railway should ordinarily be employed only in the following types of cases.
(a) Casual Labour (Open Line).- Casual labour are primarily engaged to supplement the regular staff in work of seasonal or sporadic nature, which arises in the day to day working of the Railway system. This includes labour required for unloading and loading of materials, special repair and maintenance of tracks and other structures, supplying drinking water to passengers during summer months, (recoupment of man-days lost on account of absenteeism) patrolling of tracks, etc. casual labour so engaged in the operation and maintenance of railway system is referred to as open line casual labour, as distinct from project Casual Labour, described in para (b) infra.
(b) Casual Labour (Project)- Casual Labour are also engaged on Railways for execution of Railway projects, such as new lines, doubling, conversion, construction of building, track Renewals, Route Relay interlocking Railway Electrification, Setting up of new units etc. Casual Labour so engaged are referred to as "Project Casual Labour".
Such of those casual Labour engaged on open line (revenue) works, who continue to do the same work for which they were engaged or other work of the same type for more than 120 days without a break will be treated as temporary (i.e. given "temporary status") on completion of 120 days continuous employment.
Casual Labour on projects who have put in 180 days of continuous employment on works of the same type are entitled for 1/30th of the minimum of the appropriate scale of pay plus Dearness allowance...
(ii) Grant of temporary status to project casual labour is regulated by instructions separately issued by the Railway Board. As far as possible, casual labourers required for new projects must be taken from amongst those casual labourers. Who have worked on the open line/projects in the past in preference to outsiders?
10 OA.No.93/2020(ii) Seasonal labour sanctioned for specific works of less than 120 days duration. If such labour is shifted from one work to another of the same type and the total continuous period of such work at any time is more than 120 days duration, they should be treated as temporary (i.e. granted "temporary status" after the expiry of 120 days continuous employment.
(emphasis supplied) ii. Rule 2002 [@page 31 in Application for Addl. Docs. i.e. IA No. 137388/2021]:
2002. Entitlements and privileges admissible to Casual Labour.--Casual Labour are not eligible for any entitlement and privileges other than those statutorily admissible under the various Acts, such as. Minimum Wage Act, Workmen's Compensation Act, etc. or those specifically sanctioned by the Railway Board from time to time.
iii. Rule 2005 [@page 32 in Application for Addl. Docs. i.e. IA No. 137388/2021]:
xxx xxx xxx 2005. Entitlements and Privileges admissible to Casual Labour who are treated as temporary (i.e. given temporary status) after the completion of 120 day or 360 days of continuous employment (as the case may be). -- (a) Casual labour treated as temporary are entitled to the rights and benefits admissible to temporary railway servants as laid down in 'Chapter XXIII of this Manual. The rights and privileges admissible to such labour also include the benefit of D&A Rules. However, their service prior to absorption in temporary/permanent/regular cadre after the required selection/ screening will not count for the purpose of seniority and the date of their regular appointment after screening/selection shall determine their seniority vis-a-vis other regular/temporary employees. This is however, subject to the provision that if the seniority of certain individual employees has already been determined in any other manner, either in pursuance of judicial decisions or otherwise, the seniority so determined shall not be altered.
Casual labour including Project casual labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits. This benefit will be admissible only after their absorption in regular employment. Such casual labour, who have attained temporary status, will also be entitled to carry forward the leave at their credit to new post on absorption in regular service. Daily rated casual labour will not be entitled to these benefits. (emphasis supplied) 11 OA.No.93/2020 iv. Rule 2006 [@page 32 in Application for Addl. Docs. i.e. IA No. 137388/2021]:
2006. Absorption of Casual Labour in regular vacancies.
-- Absorption of casual labour in regular Group 'D' employment may be considered in 'accordance with instructions issued by the Railway Board from time to time. Such absorption is, however, not automatic but is subject, inter-alia, to availability of vacancies and suitability and eligibility of individual casual labour and rules regarding seniority unit method of absorption etc. decided by the Railway Administration.
18. It is submitted that therefore the Commission Vendors cannot claim the benefits at par with the absorbed Casual Labourers.
19. It is further urged that the Casual Labourers are being granted the benefits pursuant to the decision of this Court in the case of Union of India v. Rakesh Kumar, (2017) 13 SCC 388. That on an interpretation of concerning Rule 31 of the 1993 Rules which provides for counting of service paid from contingencies, this Court held that period of Casual Labourers prior to grant of temporary status by virtue of note on Rule 31 has to be counted to the extent of 50% for pensionary benefits. It is submitted that Rule 31 which fell for consideration before this Court reads as under:
31. Counting of service paid from contingencies.--In respect of a railway servant, in service on or after the 22nd day of August, 1968, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment, subject to the following condition, 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 such 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, borne 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 1-1-1961 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.12 OA.No.93/2020
(2) The expression "absorption in regular employment" means absorption against a regular post."
20.It is submitted that insofar as the Commission Vendors are concerned, Rule 31 of the 1993 Rules shall not be applicable at all.
21. It is further submitted that so far as the Commission Vendors are concerned, there are no commensurate rules and therefore, Rule 31 of the 1993 Rules which formed the basis of the judgment in Rakesh Kumar's case (supra) cannot be applied to the Commission Vendors who occupy an altogether different status.
22.It is submitted that as such Rule 14 of the 1993 Rules provides the period which shall not be treated as service for pensionary benefits. It is submitted that as per Rule 14(v) of the 1993 Rules, the period under a covenant or a contract which does not specifically provide for grant of pensionary benefits and/or the period on contract basis except when followed by confirmation are not to be counted for pensionary benefits. It is submitted that the respective Commission Vendors have been rendering service under the contract which do not provide for grant of pensionary benefits. They are not even paid regular salaries and they were paid on the basis of the commission. It is submitted therefore by applying Rule 14(v) of the 1993 Rules, service rendered as Commission Vendors which are rendered under the contract and which do not provide for grant of pensionary benefits, prior to their absorption, cannot be counted for the pensionary benefits, otherwise the same shall be hit by and/or contrary to Rule 14(v) of the 1993 Rules.
23. It is submitted that insofar as Rule 14(xiv) is concerned, the expression "confirmation" indicates beyond any manner of doubt that the said sub-rule applies only in cases where there was a substantive post in which a contractual employee was confirmed at a later stage. It is submitted that however, this is not the case insofar as the Commission Vendors are concerned. It is submitted that upon harmonious interpretation of Rule 14(v) and Rule 24 it becomes clear that period of employment as Commission Vendors will not constitute service for pensionary benefits. It is submitted that the aforesaid Rules, namely, Rule 14(v) and 14(xiv) have not been considered in any of the judgments that have been passed by the Tribunals or the High Courts in its correct perspective. It is submitted that the contractual terms between Commission Vendors and the Railways specifically omits to mention any entitlement to pension. ................................................................
29.Ms. Madhavi Divan, learned ASG has further submitted that if the impugned judgment and order passed by the High Court is not interfered with, there shall be huge financial liability upon the Railways. On the huge financial burden, Ms. Madhavi Divan, learned ASG has taken us to the relevant paragraphs in IA No. 137388/2021, which are as under:
13 OA.No.93/2020Financial implications
15. If the 50% of past service rendered as commission vendor/ Bearers were to be counted for computing the qualifying service for grant of pensionary benefits, huge financial burden would fall upon the shoulders of the public exchequer.
16. For Delhi Division alone, where only 57 commission vendors/Bearers are there at present, the financial burden would be more than Rupees 10 crores approx. For instance one Mr. Om Prakash (Respondent party in SLP (C) Diary No. 27616/2020) was engaged as Commission Vendor on commission basis on 17.02.1977 whose date of birth is 12.01.1956 and absorbed in Railway on 27.07.2015. He was superannuated on 31.01.2016 when was drawing basic pay 18000 in Level 1 of 7th CPC.
As per the impugned Order, 50% of period from 17.02.1977 to 26.07.2015 comes to 19 years 02 months and 19 days if computed in compliance of the judgment and order impugned in the present SLP. So the total qualifying service would be 19 Years 8 months and 23 days.
His total pension would be Rs. 9000/- per month with admissible DA and Rs. 5000/- family pension per month after demise of the retired employee. Furthermore, the persons, so absorbed in regular service, who have already retired without completing 10 years of service after their absorption would also now become eligible for pensionary benefits which lead to huge monetary expenditure to the public exchequer. It is therefore clear that an employee who rendered only 6 months service after absorption is to be paid Rs. 1,76,940/- lump sum and Rs. 9000/- per month as pension for at-least 15 years (considering the life span of retiree as 75 years). As per this illustration, Rs.16,20,000 as on average excluding Dearness relief has to be paid to an employee who rendered only about 6 months service after absorption.
17. In southern Railway itself, 1265 Commission Vendors/Bearers have been regularized on the basis of direction issued by this Hon'ble Court till 2004. The Commission Vendors/Bearers, who are still in service after their absorption into regular service, if given benefit of counting 50% pre absorption service, would become entitled for MACP benefits which will result in the pension and allied benefits also.
This financial impact shall be huge as it will apply to such Commission Vendors/Bearers in all zones of Indian Railway across the country. There are more than 1000 of such Commission Vendors/Bearers covered under absorption scheme excluding those who had already retired from service without completing 10 years of minimum qualifying service..........................................................
52. We have heard learned Additional Solicitor General of India appearing on behalf of the Union of India and others and Shri Sanjay Parikh, learned Senior Advocate appearing on behalf of the respondents.
14 OA.No.93/202053. At the outset, it is required to be noted that the issue in the present case is with respect to Commission Vendors working in the Northern Railway and the issue is whether the Commission Vendors who were absorbed in the regular service are entitled to reckon 50% of the period of service as Commission Vendors, prior to their absorption, as qualifying service for grant of pensionary benefits, at par with the casual labourers whose services were regularized by virtue of Rule 2005 of the Indian Railway Establishment Manual, Vol. II, 1991 (IREM) r/w Rule 31 of the Railway Services (Pension) Rules, 1993.
54.At the outset, it is required to be noted that so far as the Commission Vendors working in the Western Railway, Eastern Railway, Southern Railway and South-Eastern Railway are concerned, pursuant to different orders passed by the Central Administrative Tribunals and High Courts, which have been confirmed by this Court, the issue is held against the Union of India/Railways, the particulars of which are as under:
i. By a detailed judgment and order in OA No. 238/2004, the Central Administrative Tribunal allowed the said OA filed by the Association/Trade Union of the employees of the Railways filed on behalf of the Commission Vendors/Bearers working in the Western Railway, relying upon the earlier order passed by the CAT in OA No. 538/1996 and the order passed by the Bombay High Court in Writ Petition No. 499/2002, and held that the Commission Vendors/Bearers are entitled to 50% of the services rendered by them as Commission Vendors/Bearers for the purpose of pension along with the services rendered by them as 31 regular employees of the railways. The judgment and order passed by the Tribunal in OA No. 538/1996 came to be confirmed by the Bombay High Court, by judgment and order dated 21.04.2008 passed in Writ Petition No. 190/2006. The said judgment and order dated 21.04.2008 passed by the High Court was the subject matter of the special leave petition before this Court. This Court initially issued notice in the special leave petition and thereafter by order dated 14.03.2011 passed in SLP(Civil) No. 24166/2009, dismissed the special leave petition on the ground of delay as well as on merits;
ii. With respect to the Commission Vendors/Bearers working in the Eastern Railway, there was a decision against the Railways by the Calcutta High Court, which was the subject matter of Special Leave Petition before this Court being Special Leave Petition (Civil) No. 25730/2009. In the case of eastern railway, the CAT, Calcutta Bench held in favour of the Commission Vendors/Bearers. The writ petition filed by the Railways came to be dismissed by the Calcutta High Court against which the aforesaid special leave petition came to be filed before this Court, which was dismissed by order dated 14.03.2011; iii. With respect to Commission Vendors/Bearers working in the Southern Railway, the High Court of Kerala at Ernakulam held 15 OA.No.93/2020 in favour of the similarly situated Commission Vendors/Bearers. In the case of Southern Railway, the CAT, Ernakulam Bench vide order in OA No. 440/2003 decided in favour of the Commission Vendors/Bearers. The Railway Board and others filed a writ petition before the High Court being Writ Petition No. 15756/2006. The High Court affirmed the order passed by the tribunal directing that the 50% of the services rendered on contract basis be counted for pension. Against the order passed by the Kerala High Court, the Railways filed a special leave petition before this Court, which came to be dismissed on the ground of delay;
a. By another judgment, similar order was passed by the High Court of Kerala, confirming the judgment and order passed by the CAT, Ernakulam Bench, which was decided in favour of the Commission Vendors/Bearers. The said judgment and order passed by the High Court has attained finality.
b. There were similar judgment(s) and order(s) passed by the CAT, Ernakulam Bench which were in favour of the Commission Vendors/Bearers, which have attained finality.
iv. With respect to the Commission Vendors/Bearers working in the South-Eastern Railway, the CAT, Calcutta Bench vide order dated 06.12.2010 in OA No. 758/2007 declined the claim of the Commission Vendors/Bearers. However, by a detailed judgment and order dated 30.08.2012 in Writ Petition No. 28/2011, the High Court of Calcutta held that the Commission Vendors/Bearers are entitled to 50% of the services rendered prior to their regularization to be counted for pensionary benefits. The special leave petition against the judgment and order passed by the High Court of Calcutta came to be dismissed by this Court being Special Leave Petition No. 25019/2013.
55. From the aforesaid, it can be seen that with respect to Commission Vendors/Bearers working in the Western Railway, Eastern Railway, Southern Railway and South-Eastern Railway, they are held to be entitled to 50% of the services rendered prior to their regularization to be counted for pensionary benefits and all those Commission Vendors/Bearers are granted such benefits. Now the dispute is with respect to Commission Vendors/Bearers working in the Northern Railway.
56. It cannot be disputed that employees working in different divisions/zones in the Railways are under the very same employer - Railway Board which is under the Ministry of Railways. There are 16 Zones and 68 Divisions in the Railways. Therefore, the employees working under the same employer - Railway Board working in different Zones/Divisions are required to be treated similarly and equally and are 16 OA.No.93/2020 entitled to similar benefits and are entitled to the same treatment. As rightly submitted on behalf of the respondents, there cannot be any discrimination inter se. Under the circumstances, on the ground of parity, the Commission Vendors/Bearers working in the Northern Railway are entitled to the same benefits which are held to be entitled to all the similarly situated Commission Vendors/Bearers working under different Zones/Divisions. There cannot be different criteria/parameters with respect to similarly situated employees - Commission Vendors/Bearers working in different Zones/Divisions, but working under the same employer.
57. The Railways/UOI/Railway Board cannot be permitted to repeat the same arguments which were raised before different Tribunals, High Courts and also before this Court. Under the circumstances, the respondents - Commission Vendors/Bearers working in the Northern Railway shall also be entitled to the same benefits which the other Commission Vendors/Bearers working in different Zones/Divisions are held to be entitled to. There cannot be discrimination among the similarly situated Commission Vendors/Bearers. To deny similar benefits would tantamount to discrimination and in violation of Articles 14 and 16 of the Constitution of India.
58. Now so far as the submission on behalf of the appellants - UOI/Railways that there shall be huge financial burden on the Railways is concerned, it is required to be noted that the issue is with respect to pensionary benefits. Once it is found that the respondents - Commission Vendors/Bearers working in the Northern Railway are also entitled to similar benefits which are given to the similarly situated Commission Vendors/Bearers working in different zones/divisions and since they are already being paid the pensionary benefits by counting the benefit of 50% of their services rendered prior to their regularization, there is no reason to deny the similar benefits to the respondents - Commission Vendors/Bearers working in the Northern Railway being similarly situated.
59. Even the concept of negative equality submitted on behalf of the appellants also shall not be applicable in the facts and circumstances of the case, more particularly when the decisions of different High Courts which are held against the appellants have been confirmed by this Court and the special leave petitions have been dismissed on the ground of delay as well as on merits.
60. In view of the above and for the reasons stated above and even applying the doctrine of stare decisis, on the aforesaid ground alone, the present appeals deserve to be dismissed and are accordingly dismissed, by holding that the respondents - Commission Vendors/Bearers working in the Northern Railway are entitled to have 50% of their services rendered prior to their regularization to be counted for pensionary benefits like other office Bearers/Vendors working under the Railway 17 OA.No.93/2020 Board, working in different zones/divisions, namely, Western Railway, Eastern Railway, Southern Railway and South-Eastern Railway.
6. It is to be noted in the said judgment that zone wise status of the Commission Vendors/Bearers involving issues regarding computation of 50% past services and its financial implications has been discussed elaborately. It is also to be noted that the specific plea raised by the Railways before the Hon'ble Supreme Court that the Commission Vendors who have been absorbed have not completed 10 years of service after their absorption and before retirement which is mandatory for receiving financial benefits. Particularly, Munshi Ram who was respondent before the Hon'ble Supreme Court, has served only for a period of three and half months approximately between his absorption on 16.07.2015 and superannuation on 31.10.2015. On perusal of the said observations made by the Hon'ble Supreme Court after referring the submission of the Railway Counsel, it is noted that the applicant who came to be absorbed in the year 2006, is in a much better footing. It is also to be noted that while passing the order, the Hon'ble Supreme Court held in favour of the employee by directing the Railways to calculate his 50% of service rendered as a Commission Bearer for grant of pensionary benefit. Accordingly, the employee who came to be absorbed in the year 2015 after the New Pension Scheme came into existence but after calculating his prior service rendered as Commission Vendor/Bearer, he has been taken into the old pension and granted pensionary benefits. In view of the same, the applicant who was working with the organisation since 1980 as Commission Bearer till his absorption up to 2006 has almost rendered total 26 years of service in length if at all 50% service has been calculated, it will be 13 years which should be added with his regular service after absorption.
18 OA.No.93/20207. In view of the above, the impugned order dated 02.08.2019 passed by the respondents rejecting the case of the applicant for counting of casual labour service for the purpose of pensionary benefits, is hereby quashed and set aside.
However, it is made clear that following the judgment passed by the Hon'ble Supreme Court in the matter of Union of India & others vs. Rakesh Kumar & others in Civil Appeal No.3938/2017 dated 24.03.2017, the respondents are directed to count the 50% of service of the applicant rendered as Commission Vendor/Bearer prior to his regularisation for the purpose of pensionary benefits.
However, the monetary benefits shall be paid to the applicant prior to 3 years of filing of this OA only.
8. With the above observation, the OA is disposed of. However, there shall be no order as to costs.
(DR. LATA BASWARAJ PATNE) JUDICIAL MEMBER /ps/