Central Administrative Tribunal - Ernakulam
K Panneerselvam vs Southern Railway on 21 September, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/00394/2022
Wednesday, this the 21st day of September, 2022.
CORAM:
HON'BLE Mr. JUSTIE K.HARIPAL, JUDICIAL MEMBER
K. Panneerselvam, aged 60 years,
S/o. M.Kaliyan Nattar, Retired Technician-I
O/o. SSE(AC-Mechanic), Trivandrum
Southern Railway, Trivandrum Division
Residing at Moovenuer Naga, Kalyani Road
Thiruvemboor, Trichi-13 Ph:9486711134
Email: Nil. - Applicant
[By Advocate : M/s.Varkey & Martin]
Versus
1. Union of India represented by the
General Manager, Southern
Railway, Park Town, Chennai - 600003.
2. The Chief Personnel Officer
Southern Railway, Park Town, Chennai-600003.
3. The Divisional Railway Manager
Southern Railway, Trivandrum Division
Trivandrum-691014.
4. The Senior Divisional Personnel
Officer, Southern Railway, Trivandrum Division
Trivandrum-691014. - Respondents
[By Advocate : Mrs.O.M.Shalina, SCGSC]
The application having been heard on 14.09.2022, the Tribunal on
the 21.09.2022 delivered the following:
O.A. 394 of 2022 2
ORDER
The applicant was admittedly a commission/salaried bearer in the Indian Railways under the respondents 3 and 4. He was regularised with effect from 31.07.1998. He has retired on superannuation on 30.04.2022. It is also common case that he was admitted in service and regularised on the basis of the decision of the Hon'ble Supreme Court in T.I.Madhavan and others v. Union of India and others [MANU/SC/0451/1987]. Accordingly, Annexure- A2 order was passed and now he has retired from service. The applicant contends that he has retired from service after completing 23 years of service. He claims that 50% of his past service as commission/salaried bearer is liable to be reckoned as qualifying service and therefore, he is entitled to get full pension. In support of the same, he claims that this Tribunal had upheld the contentions raised by similarly placed persons in O.A. 417/2013 which was confirmed by the High Court and SLP filed against the same was dismissed. Therefore, he seeks a declaration that he is eligible to reckon 50% of his service as commission/salaried bearer from O.A. 394 of 2022 3 01.10.1982 to 31.07.1998 and to direct the respondents to extend him all consequential benefits and secondly to direct the respondents to revise the pensionary benefits of the applicant to issue post retirement complementary pass and also to consider him for grant of financial upgradation under the MACP scheme on the basis of the above declaration.
2. The respondents have strongly opposed the application. According to them, during 1970s and 1980s Railway had engaged commission bearers/vendors to vend articles belonging to the Railway administration in railway stations on agreement/contract basis and that was done in exercise of the executive powers under Article 299 of the Constitution of India. Sample of such agreement has been produced as Annexure-R1(A). According to them, commission bearers/vendors are governed by the terms and conditions of the agreement including remitting of caution deposit. They were entitled to earn their income as commission for selling food articles supplied by the Railway administration to the travelling public at the price fixed by the Railway. The quantum of commission depended on the quantum of food items sold by each commission O.A. 394 of 2022 4 agent. The service rendered by such commission bearers/vendors were in the nature of a commercial contract and not an employment contract. Similarly, it is pointed out that under Annexure-R1(C) judgment of the Hon'ble Supreme Court in Union of India and Others v. K.V.Baby and Others [(1998) 9 SCC 252], it has been held that the commission agents are not regular employees in the cadre of Railway Catering Service and therefore, claim raised by such persons were dismissed by the Supreme Court reversing the finding of this Tribunal on a similar claim. It is also stated that the Railway Service (Pension) Rules, 1993 does not apply to commission bearers/vendors. There are no provision of law and no office memoranda, scheme/guidelines issued by the Railway Board, which enable the respondents to reckon the period of commercial contract executed between the Railway and person like the applicant. According to them, he has no vested statutory right to claim that his past services should be reckoned for the purpose of estimating pension. It is also pointed out based on the decision in Col.B.J.Akkara and Ors. v. Govt. of India and Ors. [(2006) 11 SCC 709] that the earlier decision of this Tribunal or the High Court cannot become good precedent for O.A. 394 of 2022 5 this Tribunal. The respondents have also placed reliance on P.Singaravelan and Ors. v. The District Collector, Tiruppur and Ors. [(2020) 3 SCC 133]. Regarding the claim for reckoning MACP, it is stated that so long as they were not in continuous regular service, which is a statutory requirement for reckoning services for granting MACP, he is not entitled to get the benefit. Referring to the MACP Scheme it is clear that the 'Regular Service' for the purpose of the MACPs shall commence from the date of joining a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered in adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning. However, past continuous regular service in another Government Department alone can be taken into consideration. Therefore, it is prayed that the application may be dismissed.
3. I heard Sri.Martin, the learned counsel for the applicant as well as Smt.Shalina, the learned Senior Central Government Standing Counsel representing the respondents. According to Sri.Martin, the decisions of this Tribunal in O.A.417/2013 which has O.A. 394 of 2022 6 been followed in the common order in O.A.Nos.289/2018 and connected cases, clearly indicate that this Tribunal had accepted the claim of similarly placed persons. According to him, this decision has been upheld by the High Court and the SLP was dismissed. According to him, the applicant is entitled to get the first relief. Regarding the second relief, in the light of the stay order granted by the High Court in OP(CAT) 11/2019 he said that the matter may be left open to be agitated with a direction to the respondents to consider it subject to the result of the final decision by the High Court.
4. Smt. Shalina, Senior Central Government Standing Counsel submitted that the first part of the relief sought by the applicant requires a re-look dehors the earlier orders of this Tribunal. It may be true that such findings were upheld by the High Court when the original petitions were filed. The SLP filed against the same was dismissed on the ground of bar under limitation; so long as the Supreme Court had no occasion to pass an order on merits, it cannot be taken as a binding precedent. Learned Senior Standing Counsel pointed out that this Tribunal had not considered the judgment of the Supreme Court in K.V. Baby and Others, quoted O.A. 394 of 2022 7 supra. She also produced a copy of the judgment of a Division Bench of the High Court in W.P(C) 15756/2006, where also these aspects were not considered in proper perspective. Therefore, she submitted for dismissing the prayers in the application in the light of the settled propositions of law.
5. No doubt, the applicant was a commission/salaried bearer in Southern Railway, Thiruchirappilly. Annexure-A1 indicates that he had made a security deposit of Rs.250/- on 01.10.1982. Probably, it is a caution deposit for engaging him as a commission agent. The other documents are not very relevant, because it is the admitted fact that he was regularised on 31.07.1998 and had superannuated on 30.04.2022. The question is whether he is entitled to reckon 50% of his service as commission/ salary bearer annexed to the service rendered by him on regular basis and whether it can be reckoned for the purpose of granting him pension.
6. The applicant has claimed that 'it is a well established position that 50% of the service as a commissioned/salaried bearer is to be reckoned as qualifying service for pensionary benefits.' Perhaps he is in mind the decisions rendered in O.A.417/2013 and connected O.A. 394 of 2022 8 cases and the common order in O.A.289/2018 etc. which support his claim. As pointed out by the learned counsel, this view has been approved by the Division Bench of the Hon'ble High Court in W.P. (C)No.15756/2006, where the High Court held, referring to Rules 14 and 24 of the Railway Service (Pension) Rules to uphold the verdicts of this Tribunal; it is true that in O.A.417/2013 and in O.A.289/2018 and connected cases, this Tribunal upheld the claim of the persons similarly placed. But in none of these decisions or in the judgment of the High Court, the decision in K.V.Baby, quoted supra has been considered.
7. In K.V.Baby, quoted supra the Apex Court was considering the correctness of a verdict of this Tribunal dated 28.10.1993 where the Tribunal found that the applicants are entitled to regularisation in accordance with the law and held that they should be treated on a par with regular salaried bearer/waiters of the appellant, the Union of India, applying the principle of 'equal pay for equal work'. In the said claim, the applicants had contended that pending absorption they must be paid the same salary as regular employees as they were doing similar work, that they were under the O.A. 394 of 2022 9 same disciplinary control and power over them as regular employees. The Tribunal accepted this line of argument. However, the Apex Court did not approve the contentions. In paragraph 3 of the judgment it has been held as follows:
"3. The respondents, however, contend that pending their absorption they must be paid the same salary as regular employees, as they are doing similar work. They have also contended that the Railways have the same disciplinary control and power over them as over their regular employees. The Tribunal has accepted this contention and granted them the same emoluments as the regular employees. However, persons who are engaged on the basis of individual contracts to work on a commission basis cannot, by the very nature of their engagement, be equated with regular employees doing similar work. Their appointment and mode of selection, their qualifications cannot be compared with regular employees. The Recruitment Rules and service conditions of Southern Railways do not apply to these employees. Since they are not regular employees on the cadre of Railway Catering Service, we fail to see how they can contend that they are subject to the disciplinary jurisdiction of the Railway authorities under the relevant Rules. Their responsibilities cannot be equated with the responsibilities of regular employees. Our attention has been drawn in this connection to a decision in the case of State of Haryana v. Jasmer Singh, MANU/SC/1808/1996:
(1997)IILLJ667SC (to which one of us was a party), where O.A. 394 of 2022 10 this Court has, for reasons set out therein, declined to equate daily-rated workers with regular employees for similar reasons. In a subsequent case of State of Haryana v. Surinder Kumar, MANU/SC/0516/1997 : [1997]2SCR917 employees who were engaged on a contract basis were not considered as on a par with regular employees for the purposes of their salary and other benefits. In the case of T.1. Madhavan v.
Union of India (Supra) MANU/SC/0451/1987: JT1987(3)SC650 also, this Court, although it did not go into this question, directed that the salary of a regular employee can be paid to such employees only from the date of their absorption. In the premises, the appeals are allowed and the impugned judgment of the Tribunal is set aside. However, the respondents are entitled to absorption in the same manner as directed in T.I. Madhavan v. Union of India MANU/SC/0451/1987 : JT1987(3)SC650 and will be entitled to salary as regular employees from the date of their absorption."
That means, their mode of selection, qualifications, engagement etc. cannot be compared with regular employees. The Recruitment Rules (RR) and service conditions of the Southern Railways do not apply to these employees. Since they are not regular employees on the roll of the Railway catering service, they cannot be heard to contend that they were subject to the jurisdiction of the Railway authorities under the relevant Rules. Their responsibilities cannot be equated with the O.A. 394 of 2022 11 responsibilities of regular employees. Therefore, the decision of this Tribunal was reversed and the appeal was allowed by the Supreme Court.
8. K.V. Baby's case, quoted supra was pronounced on 21.08.1997. As noticed earlier, this decision has not been considered either by this Tribunal or the High Court when the above stated verdicts were rendered subsequently. K.V.Baby rendered by the Apex Court lays down the law of the land and therefore, the claim of the applicant that he was in the regular employment of the Railway prior to the date of regularisation cannot be accepted.
9. Even otherwise, Rule 20 of the Railway Services (Pension) Rules 1993 states when qualifying service commences. According to the Rule, subject to the provisions of this Rule qualifying service of a Railway servant shall commence from the date he takes the charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Here, the applicant was appointed to the substantive post only under Annexure-A2 proceedings of the Senior Divisional Personnel Officer, Thiruvananthapuram, with effect from 31.07.1998. O.A. 394 of 2022 12
10. As rightly pointed out by the learned Standing Counsel, Annexure-A1 does not confer status of a regular employee to the applicant. It evidences only a security deposit of Rs.250/- made by him on 01.10.1982 prior to his engaging as a commission agent for vending the items supplied by the Railway. In other words, he was only acting as a contract vendor on commission basis deployed by the Railway Board, which falls only under Article 299 and not under Articles 309 to 311 of the Constitution. There is also considerable force in the argument that it is only a commercial contract falling under Article 299 and cannot be an employment contract. The form of agreement, Annexure R1(A), clearly indicates that 'the commission that shall be payable to the commission vendor shall be regulated by rules/regulations/orders as may be issued by the Administration from time to time either separately for each catering unit or jointly for different catering units. The commission vendor shall not be entitled to any other remuneration except the commission on the sale of articles done by him. The commission shall be paid through regular commission bills prepared monthly for the purpose.' In other words, persons like the applicant were paid only commission commensurate O.A. 394 of 2022 13 with the quantity of items sold by him to the general public. He is not entitled to get salary or other remuneration. It was only a commercial contract entered into between the applicant or similarly situated persons and the Railway, which cannot be taken as an employment for any purpose. In the circumstances, he is not a railway servant as defined in sub Rule (23) of Rule 2 of Railway Services (Pension) Rules before 31.07.1998.
11. T.I.Madhavan, quoted supra, also indicates that there was an earlier direction to absorb persons similarly placed as salaried bearers of the Railway catering establishment with effect from 01.12.1983. That stood modified by K.V.Baby. The decision also indicates that the Railways is bound to pay salary to such persons from the date of the respective absorption. To put in other words, the applicant was entitled to get salary and become a regular employee of the Railways only from 31.07.1998 and there was no employer- employee relationship between the applicant and the Railways prior to the date of absorption on 31.07.1998.
12. It is also interesting to note that apart from the decision of this Tribunal, the applicant has not stated the statutory backing O.A. 394 of 2022 14 under which he can claim 50% of service rendered by him as a commission agent. In fact there is no such a statutory support; only a bland assertion that there are Rules etc. which are lacking in particulars. There is no Rule which supports the case of the applicant. The nature of the engagement of the applicant was purely on the basis of a commercial contract and there is no employment contract between the applicant and the Railways.
13. To sum up, the arguments raised by the learned Standing Counsel are formidable. Prior to the date of appointment on 31.07.1998, the applicant was not in the employment of the Railways. His merely acting as a commission agent cannot be reckoned as qualifying service to sanction pension. Therefore, the first part of the claim is liable to be rejected.
14. The second claim also cannot be accepted. As rightly pointed out by the learned Standing Counsel, even for the purpose of reckoning for a career progression, there must be regular employment which starts only from 31.07.1998. It is evident from the illustration shown in the modified scheme issued by the Railway Board. Therefore, that part of the claim also is not acceptable. O.A. 394 of 2022 15
Resultantly, none of the reliefs is allowable and the Original Application is dismissed. No costs.
Dated this the 21st September, 2022.
JUSTICE K.HARIPAL JUDICIAL MEMBER ds Applicant's Annexures Annexure A1: True copy of the Money Receipt issued to the applicant dated 01.10.1982.
Annexure A2: True copy of the order No.V/P 268/VIII/Vol.II dated 29.07.1998.
Annexure A3 : True copy of the letter No.T/C.93/Staff/Catg/Vol.III dated 15.05.1995.
Annexure A4: True copy of the PPO No.20227060400064 dated 10.05.22 of the applicant.
Respondents' Annexures AnnexureR1(A): A specimen copy of the Agreement for Commission Vendors Annexure R1(B): True copy of the Order dated 08.09.1987 in C.M.P. No.1670 of 1987 in WP No.191 of 1986 Annexure R1(C): True of the Order dated 21.08.1997 in Civil Appeal Nos. 3140-3145 of 1995 (titled Union of India) O.A. 394 of 2022 16 Annexure R1(D): True copy of the Order dated 19.12.2003 issued by the Chairman, Railway Board under letter No. 2003/TG- III/639/13/SR Annexure R1(E): True copy of the RBE No.101/2009 dated 10.06.2009 issued by the Railway Board ********