N JAGGA RAO Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal by the petitioners against the judgment and order of Banerjee, J. dated March 7 and 8 of 1973. The facts in short according to the petitioners are as follows: the petitioners are employed in the canteen of Loco, Carriage and Electrical Workshop, South Eastern Railway, Kharagpur in different capacities like cook, helper, store issuer, stall keeper. They were appointed on diverse dates between November 7, 1954 and April 18, 1963. Canteen was established under the Factories Act, 1948 for providing food to about 14,000 workers of the workshop and formed part of the workshop being exclusively used for catering of the workers. The Kharagpur workshop is a factory within the definition of the Factories Act, 1948 and the canteen is being run by the Railway administration through an administrative committee consisting of two officers of the Railwayone Personnel Officer as President and assistant Personnel Officer as Vice-President with no other member. The canteen has never been run on co-operative basis by a co-operative society of any Managing Committee of the staff. The Railway administration has the ultimate control and is obliged under the Factories Act to maintain the said canteen. In this state of affairs the employees of the canteen are the employees of the South Eastern railway run by the Union of India. This position was admitted in the circular of the Ministry of Law dated October 20, 1956 as also of the Railway Board dated December 27, 1961. There was a further circular by the Railway Board dated April 20. 1963 addressed to all the General Managers. The petitioners received full pay and other allowances including D. A. up to November 30, 1965. There was a revision of D. A. of the Railway Servants with effect from December 1, 1965 whereby the rates were increased and the petitioners received such enhanced D. A. for the period from December 1, 1965 to December 31, 1966. These grants were sanctioned by the Senior Accounts officer (W) of Kharagpur. The petitioners were however wrongfully denied the grant of D. A. from January 1, 1967 on an objection raised by the accounts department. The Railway Administration is also not treating the petitioners as the Railway employees and the petitioner's representation for enhanced Dearness Allowance and recognition of their status as railway servants have yielded no result, A demand of justice dated February 9, 1970 was served by the petitioners' lawyer but no reply was given to the same. The petitioners in this state of affairs on the above allegations moved this court in constitutional writ jurisdiction shortly thereafter praying for a writ in the nature of mandamus commanding as Railway servants and also for payment of salary, allowances, benefits including enhanced dearness allowance from January 1, 1967. A rule nisi being civil Rule No. 1799 (W) of 1970 was issued on this application. The respondents on service of the rule entered appearance and contested the rule by filing an affidavit-in-opposition affirmed by bishnupada Pal, Assistant Railway Officer of the South Eastern Railway on May 26, 1972. All material allegations made in the petition were denied and it was stated that the petitioners were employed or appointed by the canteen committee and some of them were working in the wagon shop canteen which is a different establishment and further some of them were even appointed after April 16, 1973. It was stated that the workshop canteen was set up in compliance of the provision of Factory Act for providing food to the workshop staff. The canteen is located inside the workshops but it does not form part of the Kharagpur Workshop as no manufacturing process is carried on in the canteen within the meaning of Section 2 (k) of the Factories act and the canteen staff are not workers within the meaning of Section 2 (1 ). It is further stated that the canteen was run by the Railway through its catering department till November, 1954 and thereafter the staff of the catering department employed in the canteen was withdrawn and the management of the canteen was handed over to a Managing Committee formed for the purpose. This committee was composed of both elected and nominated members while day to day management of the canteen was entrusted to the Secretary of the canteen who was an elected member. The said canteen committee appointed the staff to run the canteen and their service conditions were such as contained in the bye-laws framed by the Committee which became effective from November 7, 1954. According to the bye-laws the service in the canteen is purely private as under a private undertaking and has no relation to Railway service which will also appear from the specimen letters of appointment of canteen workers.

(2.) THE canteen committee functioned upto September 18, 1963. But due to mismanagement, the Deputy Chief Mechanical Engineer s. occupier of. the workshop decided that the members of the Committee other than the President and the Vice-President would cease to function in regard to day to day affairs except as acting as an advisory body. Since then day to day affairs of the canteen are being run by the Vice President of the Committee as its ex-officer member.

(3.) IT was submitted that the requirement under the Factories Act to provide and maintain the canteen could be done by employing an agent such as staff committee or co-operative society for management of the canteen. Paragraph 2832 of the Indian Railway Establishment manual empowers the administration to appoint as agent, Staff Committee or Co-operative Society to manage the canteen. Accordingly, in law, the staff of the canteen could not be employees of the Railways. It was further stated that the canteen under the statutory obligation was accepted by the Board as a part of the concern by its letter dated December 27, 1961 but by subsequent letter dated April 20, 1963, it was clarified that the canteen employees were not necessarily workers under the Factories Act. It was further decided that where the canteens are run by the co-operative society or the Managing Committee and there subsists a relationship of master and servant between the co-operative society or the Managing Committee and the canteen staff, the canteen staff so employed are not to be treated as Railway servant. The canteen in which the petitioners are employed is run by the Managing Committee and there subsists relationship of master and servant between the Committee and the canteen employees as the workers are appointed by the Committee. There is no such relationship between the Railway and the canteen employees. The petitioners accordingly cannot be treated as Railway servants. It is further stated that the pay and allowances of the canteen staff are reimbursed from the Railway revenue and the increased D. A. to canteen staff was granted with concurrence of the local Accounts Officer. Such increase was given till December 31, 1966. But as. the local Accounts Officer did not give his concurrence to the increased D. A. the increase was not granted thereafter. Further the D. A. already paid at the enhanced rate from December 1, 1965 to December 31, 1966 was under objection and liable to be recovered from the petitioners. It was reiterated that the canteen staff could not be regarded as Railway servants and as such they are not entitled to any relief. The rule accordingly it was submitted, should be discharged. The petitioners filed an affidavit-in-reply and the allegations made in the petition were reiterated.