Calcutta High Court (Appellete Side)
(Sharmistha Chakraborty & Ors vs Union Of India & Ors on 29 July, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
29.7.2011
Sl. no.25 WPCT 168 of 2011
(Sharmistha Chakraborty & Ors.-vs- Union of India & Ors.
Mr. Kishore Dutta
Mr. Indranil Roy
Ms. Sumita Shaw .......for the petitioners
Mr. Saptarshi Roy ....for the respondents
If we bring the problem in a narrow campus, we would find that twenty-seven applicants approached the Tribunal claiming for regularization of their service by taking them on regular Pay Roll of the Railways by virtue of their engagement in a Canteen, which was serving and/or catering food to the people at large at Nimpura Railway Station including the Railway employees. They contended that their counter part working under the same terms and conditions at Kharagpur Railway Station, got identical benefit, when they were regularly absorbed on the Pay Roll of the Railways. The Railways opposed the application on the ground that they did not recognize the applicants. They were neither on the Pay Roll of the Railways nor were they asked by the Railways to run a Canteen at the said Railway Station. Facts would reveal, they were engaged by the Employees' Co-operative Society, which was running a Canteen at Nimpura Railway Station. They were working under the Co-operative Society being engaged by the said Society.
The applicants relied upon the decision of the Apex Court in the case of M.M.R. Khan & Ors. -vs- Union of India & Ors. reported in All India Reporter 1990 Supreme Court page 937. In the said decision, the Apex court decided the cases of regularization of the 2 employees working in a statutory Canteen of the Railways. The Apex Court observed that the employees working therein would be treated as Railway servants. Relying on the said decision, the petitioners prayed for regularization. They also brought analogy of their counter part at Kharagpur Railway Canteen. Pertinent to note, Kharagpur Canteen was a statutory one and the concerned employees were working under the Committee appointed by the Railways. The applicants also relied upon the Division Bench decision in the case of Punjab National Bank -vs-Punjab National Bank's Canteen Union & Ors. reported in 2007 Volume 4 Services law Reporter page 807. The Division Bench presided over by one of us (Ashim Kumar Banerjee,J.) considered the identical issue. The Division Bench observed that the control test is, as to whether the employer had any say in running of those Canteens or not. In the said case, the Canteen was being run by a Committee under the supervision or control of the Bank and the Bank provided free accommodation for those Canteens. The Division Bench considered the decision in the case of Parimal Chandra Raha -vs- Life Insurance Corporation of India reported in 1995 Volume 2 Services Law Reporter page 456. The Division Bench also distinguished the decision in the cases of Indian Overseas Bank and State Bank of India reported in 2002 Volume 2 Service Law Reporter page 204 and 2000 Volume 3 Services Law Reporter page 1 respectively. The Tribunal considered the said decisions and ultimately, held that the ratio decided in the case of Punjab National Bank would not be of any help to the applicants. The Tribunal held that the concerned Canteen was a non-statutory and non-recognized Canteen, which did not have any 3 control of the Railways. The Tribunal dismissed the application relying on the decision in the case of Reserve Bank of India -vs- Workmen reported in 1996 Supreme Court Cases (Labour & Service) page 691 followed by the decision in the case of State Bank of India (supra). Hence, this application.
Mr. Kishore Dutta, learned Counsel appearing for the petitioners contends before us that the petitioners are similarly circumstanced with their counter part at Kharagpur Railway Station. They are not really concerned as to the hierarchy of the management of the Canteen. They are also engaged in the Canteen to do identical job, which their friends are doing in Kharagpur Canteen. Hence, it would not be proper for the court to distinguish between two groups of employees. Referring to the decision in the case of Punjab National Bank (supra), Mr. Dutta submits that the Railways provided space free of cost including electricity and other infrastructural facility to the said Canteen. Hence, it should be considered as recognized Canteen and should come within the ambit of the guidelines framed by the Apex Court in the case of M.M.R. Khan (supra).
Mr. Saptarshi Roy, learned Counsel appearing for the Railways on the other hand strenuously opposes this application and submits that the concerned Canteen is non-statutory and non-recognized one having no control of the Railways. The employees for their benefits might have set up the Canteen at Nimpura. It might have utilized the infrastructure belonging to the Railways. The Railways did not object, as it was for their ultimate benefit as well as passengers and all concerned. That could not be construed as a control by the 4 Railways over the management. Hence, the decision in the case of M.M.R. Khan (supra) would have no application.
We are in full agreement with Mr. Roy, when he says that since the Canteen is non-statutory and non-recognized one, the employees are not entitled to claim regularization. We are prompted to say so in view of the decision in the case of Punjab National Bank (supra), where the Division Bench prescribed the control test taking a cue from the Apex Court decisions referred to above. The present case does not successfully pass through the said test, which would deserve any consideration by the Railways.
The application fails and is herby dismissed.
There would be, however, no order as to costs.
This order of dismissal would, however, not preclude the Railways from allowing them to participate in the regular recruitment process in any other statutory or recognized Canteen run by the Railways or in the Pantry Cars, where the Railways are serving food to the passengers. In such case, if necessary, the Railways may sympathetically consider their prayer for condonation of the age eligibility bar. However, such observations must not be construed as direction upon the Railways.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Ashim Kumar Banerjee,J.) (Dr. Mrinal Kanti Chaudhuri,J.) 5