Central Administrative Tribunal - Lucknow
Deo Sharan Mishra Aged About 49 Years Son ... vs Union Of India Through General Manager on 12 April, 2013
Central Administrative Tribunal, Lucknow Bench, Lucknow
Original Application No. 51/2012
This the 12th day of April, 2013
Honble Sri Navneet Kumar, Member (J)
1. Deo Sharan Mishra aged about 49 years son of Sri Raghav Ram Mishra, resident of Bans Gaon, Pure Dhalia District,Gonda ,U.P.
2. Amudh Shyam aged about 48 years sonof Mangal Prasad resident of 121, Baragaon, District Gonda, U.P.
3. Girdhar Lal aged about 45 years son of Satya Narain resident of 22,Dudwa Bazar, District- Gonda,U.P.
Applicant
By Advocate: Sri G.C.Verma
Versus
1. Union of India through General Manager,NE Railway,Gorakhpur.
2. Senior D.M.E. (Diesle) NE Railway, Gonda
3. D.R.M., NE Railway, Lucknow.
4. Adhyaksh Diesle Shed Canteen , Gonda, NE Railway.
Opposite Parties
By advocate: Sri S. Verma
ORDER
Honble Mr. Navneet Kumar, J.M. Present original application is preferred by the applicants under Section19 of the Administrative Tribunals Act, 1985. Consequently, the applicants moved an amendment application and after the amendment was allowed, the applicants filed the amended O.A. and prayers made in the amended O.A. are as under:-
i) To issue an order or direction and thereby setting aside /quashing of the impugned order dated 3.1.2005 which is contained as Annexure No. A-1 to this O.A..
ii) to issue an order or direction commanding the opposite parties to regulaise the applicants on the concerned post from the date of their appointment.
iii) to issue an order or direction commanding the opposite parties to pay the applicants the service benefit of a Railway Servant from the date of their appointment and other consequential benefits.
iv) to pass any other order or direction which this Honble Tribunal may deems fit, just and proper in the facts and circumstances of the case.
v) to allow the O.A. with costs.
2. The brief facts of the case are that the applicant No.1 who is working as the Canteen Manager and applicants No.2 and 3 are working as Canteen Worker in the Diesel Shed Canteen North Eastern Railway,Gonda preferred an O.A.407/2004 which was disposed of by this Tribunal vide order dated 1.10.2004 whereby the respondents were directed to decide the representation of the applicants in accordance with law and as per extant rules by the reasoned order within a period of 3 months. Subsequently the applicants claimed that they entitled to be regularized on the posts as the Canteen is statutory canteen and the subsidy was also given by the Railway Administration. The learned counsel for the applicants has also categorically pointed out that the applicants worked since 1983 till date in the Diesel Shed Canteen as such they are entitled to be regularized. The learned counsel appearing on behalf of the applicants has also categorically pointed out that the case of the applicants was also considered and recommended by the authorities i.e. Chief Mechanical Engineer (Diesel Shed,Gonda) and wrote a letter to the General Manager , NER, Gorakhpur. Not only once but number of times this process was followed but the applicants were not regularized in the Railway after rendering a substantial length of service, applicants preferred the present O.A. Learned counsel for applicants has also pointed out that the applicants has also preferred a Writ Petition before the Honble High Court challenging the order of this Tribunal whereby the Tribunal dismissed the O.A. on the ground of limitation and the said Writ Petition No. 172 (SB) of 2009 was allowed by the Honble High Court . The Tribunal was directed to decide the matter expeditiously say within a maximum period of six months. The Honble High Court also directed the Tribunal to hear the matter on merits by condoning the delay in filing the O.A. as such, the present O.A. was heard finally on merits.
3. Learned counsel appearing on behalf of the respondents filed their reply and through reply, it was pointed out by the respondents that the applicants who are working in a non-statutory unrecognized Canteen financed, owned, managed and run by the staff of Diesel shed, North Eastern Railway, Gonda as a group of persons, It is specifically and categorically denied by the respondents that the said canteen is being run with the implied permission and recognition by the Railway Board or by the General Manager, North Eastern Railway ,Gorakhpur, Divisional Railway manager, Lucknow. Apart from this that any permission / recognition to the said canteen or for that matter any canteen has to be specific and in writing from the Railway Board or any other competent authority and there cannot be any deemed permission / recognition in respect thereof. Learned counsel for respondents have also emphatically denied that the said canteen has been subsidized or is being subsidized in any manner whatsoever. Learned counsel for respondents also pointed out that the applicants failed to annexe any letter of appointment and the working certificate of the applicants was also issued by the then Canteen Manager, Diesel Shed ,Gonda who is applicant No.1 and not by any competent railway officer/ official. Even the applicant no.1 is not a Railway servant defined within the scope and meaning of Section 2(34) of the Railway Act, 1989 and paragraph 103(43) of the Indian Railway Establishment Code Volume 1.
4. The learned counsel Sri S. Verma appearing on behalf of respondents has pointed out that the abstract of the Inspection note does not indicate or shows that the present canteen employees were being financed , managed or run by the Railways. It is also pointed out on behalf of the respondents that the canteen at Diesel Shed, North Eastern Railway,Gonda has not been recognized by the Ministry of Railway / Railway Board either as a statutory or a non-statutory canteen nor any subsidy is granted thereto. As such, the impugned order dated 3.1.2005 does not suffer from any factual or legal infirmity by virtue of which the claim of the applicants was rejected for regularization. The learned counsel for respondents also pointed out that there is no circular of the railway Board providing any aid to the said canteen. However, since the canteen was situated within the premises of the Diesel Shed, the conditions of hygiene, sanitation, control of the canteen premises and maintenance of congenial and workable atmosphere within the shed canteen premises is watched and supervised by the Senior Divisional Mechanical Engineer, Diesel Shed, NER,Gonda and in this reference only letter are issued is not a charge sheet but a warning by the Senior Divisional Mechanical Engineer and also surprise inspection were conducted by the said authorities.
5. Learned counsel appearing on behalf of the applicants filed the Rejoinder Reply and through Rejoinder, mostly the avements made in the O.A. were reiterated. The learned counsel for applicants by means of Rejoinder Reply has pointed out that the LPG connection were also given to the applicants canteen and the said connection is only given to the Govt./statutory canteen and since it is statutory canteen, therefore, applicants are entitled to be regularized.
6. Heard the learned counsel for the parties and perused the material on record.
7. The applicants who are Manager and Workers in the canteen which is situated in the Diesel Shed, NER, Gonda initially preferred an O.A. No. 407/2004 which was disposed of by the Tribunal vide order dated 1.10.2004 wherein the Tribunal had directed the respondents to consider and dispose of the applicants representation within a period of 3 months and also communicate the decision to the applicants. The learned counsel for the applicants pointed out that a letter dated 9th January, 2002 which is written by the Desk Officer , Establishment (Welfare) Railway Board to the General Manager (Personnel),All India Railways and Production Units etc. in regard to making /constituting a canteen management committee. The said letter was emphasized by the applicants and submitted that all the zonal Railways etc. were requested to furnish information regarding constitution of the Committee and terms of the committee and how the staff representatives are elected functions of the committees etc. The said information were directed to be furnished separately for Zonal Head quarters and Divisions Workshop in the case of zonal Railways. The learned counsel for applicants has also relied upon the certificates issued by the Canteen Manager,Diesel Shed, Gonda and those certificates are annexed by the applicants as Annexure A-4 to the O.A. When the applicants were asked by the Tribunal to furnish or to indicate the letter of appointments issued by the Railways to any of the applicants, the learned counsel for applicants referred a letter dated 1.11.1984 which is contained in Annexure A-9 to the O.A. and in the said letter, the five names were mentioned and as per this list, name of applicants of the present O.A. are shown at Sl.No.1,2 and 5 but the said letter which the applicants claim to be an appointment letter does not bear any signature of any authority of Railways. Only the seal of Inder Deo Shukla is mentioned as Secretary, Canteen Gonda, who is applicant No.1 in the present O.A. As such the applicants failed to indicate any letter of appointment . Only it is being pointed out by the applicants that they are working since the date of their appointment and the certificate was issued to them by the competent authority and that competent authority is also shown as Canteen Manager, who is applicant No.1 in the present O.A. The learned counsel for the respondents relied upon the Railway Boards circular and submitted that the impugned order dated 3.1.2005 is not in violation of Railway Boards letter dated 9.1.2002 and also not in violation of Master Circular on Canteen of Indian Railway issued by the Govt. of India (Ministry of Railways) Railway Board dated 29.11.1991 and the Railway Board has issued the following instructions:-
5. The Supreme Court have rejected the prayer of the employees of a few non-recognised (unsubsidized) non-statutory canteens, which have sprung up without the approval of the Railway Board and in some cases with the approval and patronage of local authorities, for grant of status of Railway servants in their judgment dated 27.2.1990. Due care may, therefore, be taken to ensure that the benefits of these instructions accrue only to the employees of non-statutory (recognised) canteen set up with the approval of the Railway Board.
8. Since the applicants are claiming regularization and also pray for quashing of the impugned order dated 3.1.2005, they were required to indicate the letter of appointment. Merely saying this that the present canteen is statutory canteen and being financed owned and managed by the Railway does not give them a right for considering for regularization. The impugned order dated 3.1.2005 clearly says that the Canteen is not being recognized by the Railway and no financial help is being given for running the canteen. Since the canteen is situated within the premises of Railway and as such discipline of the canteen is being looked after by the Railway Administration.
9. The Honble Apex Court in the case of Union of India and others Vs. Debika Guha reported in 2000 (9) SCC 416 has been pleased to observe as under:-
Work for more than 180 days continuously held cannot be a basis for regularization in the matter of regularization. The Honble Apex Court in the case of Official Liquidator Vs. Dayanand and others reported in (2009)1 Supreme Court Cases (L&S) 943 has been pleased to observe as under:-
64. The next issue which needs to be address is whether the impugned orders can be sustained on the ground that by having worked continuously for 10 years or more as company paid staff as on 27.8.1999, some of the respondents acquired a right to be absorbed in the regular cadre or regularized in service and they are entitled to the benefit of the principle of equal pay for equal work and have their pay fixed in the regular pay scales prescribed for the particular posts.
65. The questions whether in exercise of the power vested in it under Article 226 of the Constitution of India, the High Court can issue a mandamus and compel the State and its instrumentalities/agencies to regularize the services of temporary/ad-hoc/daily wager/casual/contract employees and whether direction can be issued to the public employer to prescribe or give similar pay scales to employees appointed through different modes, with different condition of service and different sources of payment have become subject matter of debate and adjudication in several cases.
The Honble Apex Court in the case of State of Karnataka and others Vs. M.L.Kesari reported in (2010) 9 SCC 243 has been pleased to observe as under:-
Appointment made against the sanctioned post or appointment of unqualified persons are illegal appointment The Honble Apex Court in the case of M.D., Hassan Cooperative Milk Producers Society Union Limited Vs. Assistant Regional Director, Employees State Insurance Corporation reported in AIR 2010 Supreme Court Cases 2109 has been pleased to observe as under:-
18. It is not the case of any of the parties nor is there any evidence to show that the persons who did the loading and unloading were directly employed by the appellants. Section 2(9)(i) is, therefore clearly not attracted as it covers the workers who are directly employed by the principal employer. As a matter of fact, the thrust of the arguments centred round clause (ii) of Section 2(9). This clause, requires either (a) that the person to be an employee should be employed on the premises of the factory or establishment, or(b) that the work is done by the person employed under the supervision of the principal employer or his agent on work which is ordinarily part of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment. The expression on the premises of the factory or establishment comprehends presence of the persons on the premises of the factory or establishment for execution of the principal activity of the industrial establishment and not casual or occasional presence. We shall again assume in favour of ESI Corporation that for the purposes of loading and unloading the milk cans, the truck driver and loaders enter the premises of the appellants but mere entry for such purpose cannot be treated as an employment of those persons on the premises of the factory or establishment. We are afraid, the said expression does not comprehend every person who enters the factory for whatever purpose. This is not and can never be said to be the purpose of the expression. It has to be held that the persons employed by the contractor for loading and unloading of milk cans are not the persons employed on the premises of the appellants' establishment.
22. Although the ESI Court in respect of the appellants in separate orders has recorded a finding that such workers work under the supervision of the principal employer and the said finding has not been interfered with by the High Court but we find it difficult to accept the said finding. The ordinary meaning of the word supervision is authority to direct or supervise i.e. to oversee. The expression supervision of the principal employer under Section 2(9) means something more than mere exercise of some remote or indirect control over the activities or the work of the workers. As held in CESC Ltd.7 that supervision for the purposes of Section 2(9) is consistency of vigil by the principal employer so that if need be, remedial measures may be taken or suitable directions given for satisfactory completion of work. A direct disciplinary control by the principal employer over the workers engaged by the contractors may also be covered by the expression supervision of the principal employer. The circumstances, as in the case of HCMPSU Ltd., that the authorised representatives of the principal employer are entitled to travel in the vehicle of the contractor free of charge or in the case of BURDCMPS Union, that the principal employer has the right to ask for removal of such workers who misbehave with their staff are not the circumstances which may even remotely suggest the control or interference exercised by the appellants over the workers engaged by the contractor for transportation of milk. From the agreements entered into by the appellants with the contractors, it does not transpire that the appellants have arrogated to themselves any supervisory control over the workers employed by the contractors. The said workers were under the direct control of the contractor. Exercise of supervision and issue of some direction by the principal employer over the activities of the contractor and his employees is inevitable in contracts of this nature and that by itself is not sufficient to make the principal employer liable. That the contractor is not an agent of the principal employer under Section 2(9)(ii) admits of no ambiguity. This aspect has been succinctly explained in CESC Ltd.7 with which we respectfully agree. No evidence has been collected by ESI Corporation during the inspection of the appellants' establishments or from the contractors that the appellants have any say over the terms and conditions of employment of these employees or that the appellants have anything to do with logistic operations of the contractors. As a matter of fact, there is nothing on record to show that the principal employer had any knowledge about the number of persons engaged by the contractors or the names or the other details of such persons. There is also no evidence that the appellants were aware of the amount payable to each of these workers. In the circumstances, even if it be held that the transportation of milk is incidental to the purpose of factory or establishment, for want of any supervision of the appellants on the work of such employees, in our opinion, these employees are not covered by the definition of employee under Section 2(9) of the Act. The Honble Apex Court in the case of Union of India and others Vs. Vartak Labour Union (2) reported in (2011) 4 SCC 200 has been pleased to observe as under:-
17. We are of the opinion that the respondent Union's claim for regularisation of its members merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules.
20. In light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions by the High Court cannot be sustained. These are set aside accordingly. Again the Honble Apex Court in the case of Brij Mohan Lal Vs. Union of India and others reported in (2012) 6 Supreme Court cases 502 has been pleased to again observe that absorption in service is not a right. Further, Honble Apex Court observed as under:-
172. The prayer for regularisation of service and absorption of the petitioner appointees against the vacancies appearing in the regular cadre has been made not only in cases involving the case of the State of Orissa, but even in other States. Absorption in service is not a right. Regularisation also is not a statutory or a legal right enforceable by the persons appointed under different rules to different posts. Regularisation shall depend upon the facts and circumstances of a given case as well as the relevant rules applicable to such class of persons.
173. As already noticed, on earlier occasions also, this Court has declined the relief of regularisation of the persons and workmen who had been appointed against a particular scheme or project. A Constitution Bench of this Court has clearly stated the principle that in matters of public employment, absorption, regularisation or permanent continuance of temporary, contractual or casual daily wage or ad hoc employees appointed and continued for long in such public employment would be dehors the constitutional scheme of public employment and would be improper. It would also not be proper to stay the regular recruitment process for the posts concerned. [Refer to Umadevi (3)7.]
10. In the instant case, the learned counsel for applicants failed to indicate the date of their appointment. Only it has been said that the applicants were working since 1983 but no letter of appointment has been annexed along with the O.A. and also failed to point out that any funds are being given or the canteen is being managed by the Railway Administration. As such, on the basis of observations made by the Honble Apex Court as well as on the basis of facts and circumstances of the case, I am not inclined to interfere in the present O.A. As such the O.A. is fit to be dismissed.
11. Accordingly the O.A. is dismissed. No order as to costs.
(Navneet Kumar) Member (J) HLS/-
Central Administrative Tribunal, Lucknow Bench, Lucknow Original Application No. 51/2012 This the 12th day of April, 2013 Honble Sri Navneet Kumar, Member (J)
1. Deo Sharan Mishra aged about 49 years son of Sri Raghav Ram Mishra, resident of Bans Gaon, Pure Dhalia District,Gonda ,U.P.
2. Amudh Shyam aged about 48 years sonof Mangal Prasad resident of 121, Baragaon, District Gonda, U.P.
3. Girdhar Lal aged about 45 years son of Satya Narain resident of 22,Dudwa Bazar, District- Gonda,U.P. Applicant By Advocate: Sri G.C.Verma Versus
1. Union of India through General Manager,NE Railway,Gorakhpur.
2. Senior D.M.E. (Diesle) NE Railway, Gonda
3. D.R.M., NE Railway, Lucknow.
4. Adhyaksh Diesle Shed Canteen , Gonda, NE Railway.
Opposite Parties By advocate: Sri S. Verma ORDER Honble Mr. Navneet Kumar, J.M. Present original application is preferred by the applicants under Section19 of the Administrative Tribunals Act, 1985. Consequently, the applicants moved an amendment application and after the amendment was allowed, the applicants filed the amended O.A. and prayers made in the amended O.A. are as under:-
i) To issue an order or direction and thereby setting aside /quashing of the impugned order dated 3.1.2005 which is contained as Annexure No. A-1 to this O.A..
ii) to issue an order or direction commanding the opposite parties to regulaise the applicants on the concerned post from the date of their appointment.
iii) to issue an order or direction commanding the opposite parties to pay the applicants the service benefit of a Railway Servant from the date of their appointment and other consequential benefits.
iv) to pass any other order or direction which this Honble Tribunal may deems fit, just and proper in the facts and circumstances of the case.
v) to allow the O.A. with costs.
2. The brief facts of the case are that the applicant No.1 who is working as the Canteen Manager and applicants No.2 and 3 are working as Canteen Worker in the Diesel Shed Canteen North Eastern Railway,Gonda preferred an O.A.407/2004 which was disposed of by this Tribunal vide order dated 1.10.2004 whereby the respondents were directed to decide the representation of the applicants in accordance with law and as per extant rules by the reasoned order within a period of 3 months. Subsequently the applicants claimed that they entitled to be regularized on the posts as the Canteen is statutory canteen and the subsidy was also given by the Railway Administration. The learned counsel for the applicants has also categorically pointed out that the applicants worked since 1983 till date in the Diesel Shed Canteen as such they are entitled to be regularized. The learned counsel appearing on behalf of the applicants has also categorically pointed out that the case of the applicants was also considered and recommended by the authorities i.e. Chief Mechanical Engineer (Diesel Shed,Gonda) and wrote a letter to the General Manager , NER, Gorakhpur. Not only once but number of times this process was followed but the applicants were not regularized in the Railway after rendering a substantial length of service, applicants preferred the present O.A. Learned counsel for applicants has also pointed out that the applicants has also preferred a Writ Petition before the Honble High Court challenging the order of this Tribunal whereby the Tribunal dismissed the O.A. on the ground of limitation and the said Writ Petition No. 172 (SB) of 2009 was allowed by the Honble High Court . The Tribunal was directed to decide the matter expeditiously say within a maximum period of six months. The Honble High Court also directed the Tribunal to hear the matter on merits by condoning the delay in filing the O.A. as such, the present O.A. was heard finally on merits.
3. Learned counsel appearing on behalf of the respondents filed their reply and through reply, it was pointed out by the respondents that the applicants who are working in a non-statutory unrecognized Canteen financed, owned, managed and run by the staff of Diesel shed, North Eastern Railway, Gonda as a group of persons, It is specifically and categorically denied by the respondents that the said canteen is being run with the implied permission and recognition by the Railway Board or by the General Manager, North Eastern Railway ,Gorakhpur, Divisional Railway manager, Lucknow. Apart from this that any permission / recognition to the said canteen or for that matter any canteen has to be specific and in writing from the Railway Board or any other competent authority and there cannot be any deemed permission / recognition in respect thereof. Learned counsel for respondents have also emphatically denied that the said canteen has been subsidized or is being subsidized in any manner whatsoever. Learned counsel for respondents also pointed out that the applicants failed to annexe any letter of appointment and the working certificate of the applicants was also issued by the then Canteen Manager, Diesel Shed ,Gonda who is applicant No.1 and not by any competent railway officer/ official. Even the applicant no.1 is not a Railway servant defined within the scope and meaning of Section 2(34) of the Railway Act, 1989 and paragraph 103(43) of the Indian Railway Establishment Code Volume 1.
4. The learned counsel Sri S. Verma appearing on behalf of respondents has pointed out that the abstract of the Inspection note does not indicate or shows that the present canteen employees were being financed , managed or run by the Railways. It is also pointed out on behalf of the respondents that the canteen at Diesel Shed, North Eastern Railway,Gonda has not been recognized by the Ministry of Railway / Railway Board either as a statutory or a non-statutory canteen nor any subsidy is granted thereto. As such, the impugned order dated 3.1.2005 does not suffer from any factual or legal infirmity by virtue of which the claim of the applicants was rejected for regularization. The learned counsel for respondents also pointed out that there is no circular of the railway Board providing any aid to the said canteen. However, since the canteen was situated within the premises of the Diesel Shed, the conditions of hygiene, sanitation, control of the canteen premises and maintenance of congenial and workable atmosphere within the shed canteen premises is watched and supervised by the Senior Divisional Mechanical Engineer, Diesel Shed, NER,Gonda and in this reference only letter are issued is not a charge sheet but a warning by the Senior Divisional Mechanical Engineer and also surprise inspection were conducted by the said authorities.
5. Learned counsel appearing on behalf of the applicants filed the Rejoinder Reply and through Rejoinder, mostly the avements made in the O.A. were reiterated. The learned counsel for applicants by means of Rejoinder Reply has pointed out that the LPG connection were also given to the applicants canteen and the said connection is only given to the Govt./statutory canteen and since it is statutory canteen, therefore, applicants are entitled to be regularized.
6. Heard the learned counsel for the parties and perused the material on record.
7. The applicants who are Manager and Workers in the canteen which is situated in the Diesel Shed, NER, Gonda initially preferred an O.A. No. 407/2004 which was disposed of by the Tribunal vide order dated 1.10.2004 wherein the Tribunal had directed the respondents to consider and dispose of the applicants representation within a period of 3 months and also communicate the decision to the applicants. The learned counsel for the applicants pointed out that a letter dated 9th January, 2002 which is written by the Desk Officer , Establishment (Welfare) Railway Board to the General Manager (Personnel),All India Railways and Production Units etc. in regard to making /constituting a canteen management committee. The said letter was emphasized by the applicants and submitted that all the zonal Railways etc. were requested to furnish information regarding constitution of the Committee and terms of the committee and how the staff representatives are elected functions of the committees etc. The said information were directed to be furnished separately for Zonal Head quarters and Divisions Workshop in the case of zonal Railways. The learned counsel for applicants has also relied upon the certificates issued by the Canteen Manager,Diesel Shed, Gonda and those certificates are annexed by the applicants as Annexure A-4 to the O.A. When the applicants were asked by the Tribunal to furnish or to indicate the letter of appointments issued by the Railways to any of the applicants, the learned counsel for applicants referred a letter dated 1.11.1984 which is contained in Annexure A-9 to the O.A. and in the said letter, the five names were mentioned and as per this list, name of applicants of the present O.A. are shown at Sl.No.1,2 and 5 but the said letter which the applicants claim to be an appointment letter does not bear any signature of any authority of Railways. Only the seal of Inder Deo Shukla is mentioned as Secretary, Canteen Gonda, who is applicant No.1 in the present O.A. As such the applicants failed to indicate any letter of appointment . Only it is being pointed out by the applicants that they are working since the date of their appointment and the certificate was issued to them by the competent authority and that competent authority is also shown as Canteen Manager, who is applicant No.1 in the present O.A. The learned counsel for the respondents relied upon the Railway Boards circular and submitted that the impugned order dated 3.1.2005 is not in violation of Railway Boards letter dated 9.1.2002 and also not in violation of Master Circular on Canteen of Indian Railway issued by the Govt. of India (Ministry of Railways) Railway Board dated 29.11.1991 and the Railway Board has issued the following instructions:-
5. The Supreme Court have rejected the prayer of the employees of a few non-recognised (unsubsidized) non-statutory canteens, which have sprung up without the approval of the Railway Board and in some cases with the approval and patronage of local authorities, for grant of status of Railway servants in their judgment dated 27.2.1990. Due care may, therefore, be taken to ensure that the benefits of these instructions accrue only to the employees of non-statutory (recognised) canteen set up with the approval of the Railway Board.
8. Since the applicants are claiming regularization and also pray for quashing of the impugned order dated 3.1.2005, they were required to indicate the letter of appointment. Merely saying this that the present canteen is statutory canteen and being financed owned and managed by the Railway does not give them a right for considering for regularization. The impugned order dated 3.1.2005 clearly says that the Canteen is not being recognized by the Railway and no financial help is being given for running the canteen. Since the canteen is situated within the premises of Railway and as such discipline of the canteen is being looked after by the Railway Administration.
9. The Honble Apex Court in the case of Union of India and others Vs. Debika Guha reported in 2000 (9) SCC 416 has been pleased to observe as under:-
Work for more than 180 days continuously held cannot be a basis for regularization in the matter of regularization. The Honble Apex Court in the case of Official Liquidator Vs. Dayanand and others reported in (2009)1 Supreme Court Cases (L&S) 943 has been pleased to observe as under:-
64. The next issue which needs to be address is whether the impugned orders can be sustained on the ground that by having worked continuously for 10 years or more as company paid staff as on 27.8.1999, some of the respondents acquired a right to be absorbed in the regular cadre or regularized in service and they are entitled to the benefit of the principle of equal pay for equal work and have their pay fixed in the regular pay scales prescribed for the particular posts.
65. The questions whether in exercise of the power vested in it under Article 226 of the Constitution of India, the High Court can issue a mandamus and compel the State and its instrumentalities/agencies to regularize the services of temporary/ad-hoc/daily wager/casual/contract employees and whether direction can be issued to the public employer to prescribe or give similar pay scales to employees appointed through different modes, with different condition of service and different sources of payment have become subject matter of debate and adjudication in several cases.
The Honble Apex Court in the case of State of Karnataka and others Vs. M.L.Kesari reported in (2010) 9 SCC 243 has been pleased to observe as under:-
Appointment made against the sanctioned post or appointment of unqualified persons are illegal appointment The Honble Apex Court in the case of M.D., Hassan Cooperative Milk Producers Society Union Limited Vs. Assistant Regional Director, Employees State Insurance Corporation reported in AIR 2010 Supreme Court Cases 2109 has been pleased to observe as under:-
18. It is not the case of any of the parties nor is there any evidence to show that the persons who did the loading and unloading were directly employed by the appellants. Section 2(9)(i) is, therefore clearly not attracted as it covers the workers who are directly employed by the principal employer. As a matter of fact, the thrust of the arguments centred round clause (ii) of Section 2(9). This clause, requires either (a) that the person to be an employee should be employed on the premises of the factory or establishment, or(b) that the work is done by the person employed under the supervision of the principal employer or his agent on work which is ordinarily part of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment. The expression on the premises of the factory or establishment comprehends presence of the persons on the premises of the factory or establishment for execution of the principal activity of the industrial establishment and not casual or occasional presence. We shall again assume in favour of ESI Corporation that for the purposes of loading and unloading the milk cans, the truck driver and loaders enter the premises of the appellants but mere entry for such purpose cannot be treated as an employment of those persons on the premises of the factory or establishment. We are afraid, the said expression does not comprehend every person who enters the factory for whatever purpose. This is not and can never be said to be the purpose of the expression. It has to be held that the persons employed by the contractor for loading and unloading of milk cans are not the persons employed on the premises of the appellants' establishment.
22. Although the ESI Court in respect of the appellants in separate orders has recorded a finding that such workers work under the supervision of the principal employer and the said finding has not been interfered with by the High Court but we find it difficult to accept the said finding. The ordinary meaning of the word supervision is authority to direct or supervise i.e. to oversee. The expression supervision of the principal employer under Section 2(9) means something more than mere exercise of some remote or indirect control over the activities or the work of the workers. As held in CESC Ltd.7 that supervision for the purposes of Section 2(9) is consistency of vigil by the principal employer so that if need be, remedial measures may be taken or suitable directions given for satisfactory completion of work. A direct disciplinary control by the principal employer over the workers engaged by the contractors may also be covered by the expression supervision of the principal employer. The circumstances, as in the case of HCMPSU Ltd., that the authorised representatives of the principal employer are entitled to travel in the vehicle of the contractor free of charge or in the case of BURDCMPS Union, that the principal employer has the right to ask for removal of such workers who misbehave with their staff are not the circumstances which may even remotely suggest the control or interference exercised by the appellants over the workers engaged by the contractor for transportation of milk. From the agreements entered into by the appellants with the contractors, it does not transpire that the appellants have arrogated to themselves any supervisory control over the workers employed by the contractors. The said workers were under the direct control of the contractor. Exercise of supervision and issue of some direction by the principal employer over the activities of the contractor and his employees is inevitable in contracts of this nature and that by itself is not sufficient to make the principal employer liable. That the contractor is not an agent of the principal employer under Section 2(9)(ii) admits of no ambiguity. This aspect has been succinctly explained in CESC Ltd.7 with which we respectfully agree. No evidence has been collected by ESI Corporation during the inspection of the appellants' establishments or from the contractors that the appellants have any say over the terms and conditions of employment of these employees or that the appellants have anything to do with logistic operations of the contractors. As a matter of fact, there is nothing on record to show that the principal employer had any knowledge about the number of persons engaged by the contractors or the names or the other details of such persons. There is also no evidence that the appellants were aware of the amount payable to each of these workers. In the circumstances, even if it be held that the transportation of milk is incidental to the purpose of factory or establishment, for want of any supervision of the appellants on the work of such employees, in our opinion, these employees are not covered by the definition of employee under Section 2(9) of the Act. The Honble Apex Court in the case of Union of India and others Vs. Vartak Labour Union (2) reported in (2011) 4 SCC 200 has been pleased to observe as under:-
17. We are of the opinion that the respondent Union's claim for regularisation of its members merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules.
20. In light of the settled legal position and on a conspectus of the factual scenario noted above, the impugned directions by the High Court cannot be sustained. These are set aside accordingly. Again the Honble Apex Court in the case of Brij Mohan Lal Vs. Union of India and others reported in (2012) 6 Supreme Court cases 502 has been pleased to again observe that absorption in service is not a right. Further, Honble Apex Court observed as under:-
172. The prayer for regularisation of service and absorption of the petitioner appointees against the vacancies appearing in the regular cadre has been made not only in cases involving the case of the State of Orissa, but even in other States. Absorption in service is not a right. Regularisation also is not a statutory or a legal right enforceable by the persons appointed under different rules to different posts. Regularisation shall depend upon the facts and circumstances of a given case as well as the relevant rules applicable to such class of persons.
173. As already noticed, on earlier occasions also, this Court has declined the relief of regularisation of the persons and workmen who had been appointed against a particular scheme or project. A Constitution Bench of this Court has clearly stated the principle that in matters of public employment, absorption, regularisation or permanent continuance of temporary, contractual or casual daily wage or ad hoc employees appointed and continued for long in such public employment would be dehors the constitutional scheme of public employment and would be improper. It would also not be proper to stay the regular recruitment process for the posts concerned. [Refer to Umadevi (3)7.]
10. In the instant case, the learned counsel for applicants failed to indicate the date of their appointment. Only it has been said that the applicants were working since 1983 but no letter of appointment has been annexed along with the O.A. and also failed to point out that any funds are being given or the canteen is being managed by the Railway Administration. As such, on the basis of observations made by the Honble Apex Court as well as on the basis of facts and circumstances of the case, I am not inclined to interfere in the present O.A. As such the O.A. is fit to be dismissed.
11. Accordingly the O.A. is dismissed. No order as to costs.
(Navneet Kumar) Member (J) HLS/-