SHAKUNTLA P. GUJJAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE OAs have been jointly heard with the consent of the parties therein since the pleadings and subject matter are substantially similar in nature. Counsel on both sides in each of these OAs have been heard at length and written arguments were submitted by Mr. B.B. Gogia, learned Counsel for the applicants in these OAs, Mr. A.L. Sharma, learned Counsel for respondents in OA/102/2013 & OA/103/2013, Ms. R.R. Patel, learned Counsel for respondents in OA/107/2013 & OA/108/2013, Mr. M.J. Patel, learned Counsel for respondents in OA/109/2013 & OA/110/2013, Mr. V.K. Singh in OA/105/2013 & OA/106/2013 and Ms. Nisha Parikh in OA/100/2013 & OA/104/2013. The applicants in these cases had been working in the different stations under the Western Railways as Commission Vendors in the Railway Catering Department. By virtue of judgment of the Hon'ble Apex Court in Saital Singh v. Union of India decided on 13.12.1983 in W.P. No. 6804 -05/82 and in the subsequent order passed by the Apex Court in T.I. Madhavan, Gen. Secy., All India Railway Catering Services Workers Union v. Union of India & Ors., : 1988 (Supp.) SCC 437, the persons working as Commission bearers and vendors on various Railway platforms belonging to the Central Railway and South Central Railway were directed to be absorbed progressively as members of permanent Railway Catering Service, as and when vacancies to the post of bearers in the Railway Catering Service occur. Subsequently it appears that the Railway Board has decided to extend this benefit to all Zonal Railways and accordingly, the applicants in these cases were also absorbed to different posts in Group 'D' as permanent employees. The details of the applicants in these OAs regarding the date on which they started working as Commission vendors, the date of their absorption in the Railway services and the post to which they were absorbed etc. are shown in the tabulated form as under:

(2.) THE respondents contest the claim of the applicants, particularly on the ground of delay. According to them the applicants ought to have approached the Tribunal immediately after they were absorbed into the Railway service. Respondents contends that the claim of the applicants for being notionally treated as in Railway service from the date on which they were appointed as Commission Vendors also is badly hit by delay. They further contend that the decision of the Bombay Bench of this Tribunal and the order of the Hon'ble Bombay High Court in the consequent writ petition (supra) are not applicable to the facts of the present OAs because those facts are different and distinct from those in the present OAs. The respondents further contend that the directions of the Hon'ble Apex Court in Saital Singh case (supra) and T.I. Madhavan case (supra) were being implemented by the respondents in a progressive manner as and when the vacancies became available. It is also contended by the respondents that when the applicant in these OAs joined the Railway services as regular appointees, the new pension scheme with effect from 01 -1 -2004 has come into vogue and the applicants therefore cannot be allowed to resort to the old pension scheme that existed prior to 1.1.2004 by notionally extending of their services retrospectively to the date of their initial employment as Commission Vendors.

(3.) AT the outset of his arguments Mr. B.B. Gogia submitted that the applicants in these cases while working as Commission Vendors were in fact working under the Railway Administration and hence they ought to have been treated as Railway servants from the day on which they were engaged as Commission Vendors. According to Mr. Gogia, for all practical purposes, the applicants were like Railway servants and they were selling the materials belonging to the Railways to the travelling public in the trains. Mr. Gogia submitted that instead of salary the applicants were paid commission and it is for this reason the Hon'ble Apex Court in Saital Singhs case (supra) and T.I. Madhavans case (supra) ordered them to be absorbed as Railway servants. Referring to Kanak Chandra Duttas case (supra), Mr. Gogia submitted that a Bench of five Judges of the Hon'ble Apex Court had found that Mauzadar who is engaged in the State of Assam for collection of revenues in the Assam Valley is holding a civil post although instead of salary he is paid commission. In that case, the Apex Court while observing that there is no formal definition of "post" and "civil post" in Article 311 of the Constitution held that the relationship of master and servant could be established in the case of Mauzadar in Assam Valley. Mr. Gogia then referred to MMR Khans case (supra) wherein it was held by the Apex Court that the employees in the statutory and nonstatutory recognised canteens in the Railways should be treated for all purposes as Railway servants.