Jharkhand High Court
Union Of India (Uoi) Through South ... vs Ram Prasad Sahu @ Ram Pd. Shaw And Ors. on 19 June, 2006
Equivalent citations: [2006(3)JCR412(JHR)], 2006 LAB IC (NOC) 419 (JHA), 2006 (3) AIR JHAR R 17 (2006) 3 JCR 412 (JHA), (2006) 3 JCR 412 (JHA)
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT
S.J. Mukhopadhaya, A.C.J. Page 1299
1. Both the writ petitions arise out of a common judgment and order dated 25th of July, 2005, passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal), Patna Bench, Circuit Court, Ranchi, in O.A. No. 290 of 2003, whereby and where under, while part of the prayer as made by 'Ram Prasad Sahu and others' has been allowed, rest of their prayer has been rejected.
2. As the cases can be disposed of on short point, it is not necessary to discuss all the facts, except the relevant one.
The petitioners - Ram Prasad Sahu and others were engaged by the South Eastern Railway as Commission Vendors/Bearers and were selling foods to the railway passengers and others on behalf of the railways on commission basis. The Southern Eastern Railway were running the Catering Units in the Refreshment Room/Dining Halls; Food Stocks; Tiffin and Tea, Coffee Stals etc. through the Commission Vendors/Bearers. The Railway is also running Pantry Cars in some of its important trains and is serving foods to passengers through their Commission Vendors/Bearers. All these units are being run by the Railways for about fifty years. The Commission Vendors/Bearers were being paid commission @ 15 % of the sale proceeds at the end of every month and in this way they used to earn about Rs. 500/- to Rs. 800/- per month. Some of the Commission Vendors/Bearers were also taken in the permanent services of the Railways and were getting about Rs. 2,450/- per month and other allowances.
A case was preferred by Commission Vendors/Bearers being Writ Petition (C) No. 196 of 1995 before the Supreme Court for their absorption in the services of the Railways and for payment of wages on the principle of 'equal pay for equal work'. The Supreme Court by interim orders dated 9th October, 1995 and 2 nd April, 1996 ordered that the Commission Vendors/Bearers of South Eastern Railway, be given at least a sum of Rs. 1500/- per month on ad hoc basis or the commission, whichever is higher. The said writ petition was finally disposed of by the Supreme Court on 3rd December, 1997. It was directed that till the Commission Vendors/Bearers of South Eastern Railway are not absorbed in the services of Railway against the available vacancies, they will be paid the minimum of the scale of pay together with D.A. and other allowances. The Chief Catering Manager (Catering CATG), South Eastern Railway, Calcutta by his letter dated 12th May, 1999 also instructed all concerned officers to implement the Supreme Court's directions in its letter and spirit, but the matter actually remained pending for years together. A number of Commission Vendors/Bearers were absorbed between the year 1999 - 2001, but no specific order was issued with regard to Ram Prasad Sahu and others.
3. According to the counsel, appearing on behalf of the petitioners - Ram Prasad Sahu and others, the authorities delayed the matter though all the details were available Page 1300 with them. The age of superannuation of Railway employees, in the meantime, were enhanced from 58 to 60 years by R.B. No. E (P & A) I-98/RT-6 dt. 14 th May, 1998. The South Eastern Railway absorbed many of the Commission Vendors/Bearers between the year 2001-02, but no order having been passed with regard to the petitioners - Ram Prasad Sahu and others, they preferred O.A.No.290 of 2003 before the Central Administrative Tribunal, (Ranchi Bench).
4. The petitioners were engaged as Commission Vendors/Bearers in the year 1956 and attained the age of 60 years between the year 1999 and 2001. At paragraph '23', the following details in regard to the petitioners have been shown:
SI No. Name of the Petitioner.
Date of Birth Date of Engagement Date of attaining age of 60 years
1.
Ram Pd. Sahu.
26,04.1939 09.08.1956 26.04.1999.
2. Chandrama Pd. Mishra.
03.03.1939 20.02.1956 03.03.1999
3. Saraswati Mishra 05.12.1941 29.01.1956 05.02.2001
4. Chandrika Singh.
11.06.1940 26.06.1956 11.06.2000
5. Ambika Shukla.
20.06.1941 11.01.1956 20.06.2001
6. Rameshwar Singh.
16.01.1941 20.12.1956 16.01.2001
7. Ram Naresh Shukla.
20.06.1940 17.05.1956 20.06.2000
8. Ram Chandra Bhagat.
27.07.1939 25.06.1956 27.07.1999
5. According to the counsel for the Union of India, the applicants- Ram Prasad Sahu and others having not absorbed in the services of the South Eastern Railway, are not entitled for Pension and as such, the Tribunal should not have ordered to consider their cases for Pensionary benefits giving reference of order dated 21st July, 1999.
6. On the other hand, according to the counsel appearing on behalf of the applicants - Ram Prasad Sahu and others, for the purpose of absorption, 60 years of age is to be calculated on the date, the Supreme Court passed order in the Writ Petition (C) No. 196 of 1995 i.e. 3rd December, 1997; due to laches on the part of the Railways; the applicants - Ram Prasad Sahu and others cannot suffer and they should be deemed to have been absorbed in the services of the Railways from the date the Supreme Court's order was to be given effect. Reliance was also placed on Supreme Court decision in Bhaskar Gajanan Kajrekar v. Administrator, Dadra & Nagar Haveli and Ors. , to suggest that the applicants - Ram Prasad Sahu and others deemed to have been absorbed in the services of the Railways.
7. Having heard the counsel for the parties and after giving our anxious consideration to the ends of the resultant, we are not inclined to accept the contentions as made on behalf of the applicants - Ram Prasad Sahu and others. There cannot be a 'deemed absorption' or 'automatic absorption' in the services of a State till law permits such deemed absorption. In absence of any statutory rule, guidelines, circulars or instructions, it cannot be presumed that a person stands automatically ' absorbed in the services of a State.
8. In the present case, the parties have failed to bring on record any Rule; Guidelines; Circular; Instruction or any other Instrument to suggest automatic absorption of Page 1301 Commission Vendors/Bearers in the services of the Railways. On the other hand, it will be evident from the Supreme Court's order dated 3rd December, 1997 passed in W.P.(C) No. 196 of 1995 and the order passed in the case of T.I. Madhavan v. Union of India, reported in 1988 (Supp) Supreme Court Cases 437, that all persons working as the Commission Vendors/Bearers on various Railway Platforms should be absorbed progressively as members of the Permanent Railway Catering Service, as per the terms of Paragraph '3' of Memorandum No. 76 TG III/639/11 dated 13th December, 1976 i.e., as and when vacancies in the Railway Catering Service occur; that means in absence of a vacancy, no person can be absorbed in the services of the Railways.
Further, the applicants - Ram Prasad Sahu and others having crossed more than 60 years of age in between March, 1999 and June, 2001, there was no occasion for the Tribunal to direct the Railways to absorb them in the services of the Railways.
9. So far as the guidelines dated 21st July, 1999 is concerned, no separate order has been enclosed by the parties, but from the extract of the said guidelines dated 21st July, 1999 enclosed as Annexure-5 to Writ Petition No. 1504 of 2006, it appears that the following guidelines were issued by the Railways :
NO PAYMENT WILL BE MADE TO THE COMMISSION BEARERS/VENDORS WHO HAVE CROSSED/58 YEARS OF AGE IN DEC 97 AND 60 YEARS OF AGE ON 13/5/99 AS THEY CANNOT BE ABSORBED IN RAILWAYS THEY WILL CONTINUE TO WORK AS COMMISSION VENDORS/BEARERS AND DRAW COMMISSION AS PER EXTEN RULE (.) IF SOME PAYMENTS HAVE BEEN RELEASED IN THEIR FAVOUR NECESSARY ADJUSTMENTS ARE TO BE MADE AFTER CALCULATING ACTUAL COMMISSION AMOUNT EARNED DURING THE PERIOD.
THE ELIGIBLE COMMISSION VENDORS/BEARERS WILL GET ARREARS OF PAY AND ALLOWANCE WEF 3/1 2/97 NECESSARY ADJUSTMENTS RECOVERIES TOWARDS COMMISSION PAID WILL BE MADE THROUGH ARREAR BILL.
ALL THE COMMISSION BEARERS/VENDORS WHO ARE BENEFITED BY THE JUDGMENT ARE AMENABLE TO ALL KINDS OF DISCIPLINARY RULES AND THEY CAN BE TAKEN UP IN CASE OF NON PERFORMANCE OR OTHER OFFENCE,
10. Admittedly, the Commission Vendors/Bearers are not employees of the Railways. They receive only commission @ 15% of the sale proceeds monthly. Their commission amount has been enhanced by the order of the Supreme Court, but their status remained the same having not yet absorbed in the services of the Railways. It has already been held that those Commission Vendors/Bearers who have already attained the age of superannuation (60 years) cannot be absorbed and taken in the regular services of the Railways, no direction can be issued in their favour.
11. As the Commission Vendors/Bearers are not employees of the Railways, the age of superannuation is not applicable for the purpose of continuity as Commission Vendors/Bearers, but it is always open to the competent authority to disengage them, if found overage, and not fit to perform job.
12. Similarly, the Commission Vendors/Bearers being not the employees of the Railways and in absence of any guidelines to pay Pensionary benefit to them, neither they can claim for Pensionary benefit nor the Court can give such direction to pay Pensionary benefit.
Page 1302
13. In view of the aforesaid finding, the order dated 25th of July, 2005 passed by the Central Administrative Tribunal, Ranchi Bench in O.A. No. 290 of 2003 cannot be upheld and the said order is, accordingly, set aside.
14. The writ petitions stand disposed of with the aforesaid observations. There shall, however, be no order, as to costs.