IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 WP(C).No. 21511 of 2009(S) --------------------------------------- OA.NO. 893/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): ------------------------ 1. K.K.VIJAYAKUMAR,HELPER-II, S.S.E/ELECTRICAL/ERNAKULAM SOUTH, SOUTHERN RAILWAY THIRUVANANTHAPURAM. 2. C.O.NICHOLAS,HELPER-II,S.S.E/ELECTRICAL/ ALAPPUZHA,SOUTHERN RAILWAY,THIRUVANANTHAPURAM. 3. K.V.BABY,HELPER II,S.S.E/ELECTRICAL/ SENIOR BSO OFFICE, CVC/DEVISION,SOUTHERN RAILWAY, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S): --------------------------- 1. THE CHIEF COMMERCIAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3. 2. THE GENERAL MANAGER,SOUTHERN RAILWAY, CHENNAI-3. 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY,MINISTRY OF RAILWAY,RAIL BHAVAN, NEW DELHI. 4. THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. R1 TO R3 BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.21511/2009 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION IN O.A.NO.893/2004 IN THE FILE OF CAT ERNAKULAM BENCH. P2 COPY OF THE REPLY STATEMENT FILED RESPONDENT NO.1 TO 3 IN O.A.NO.893/2004 IN THE FILE OF CAT ERNAKULAM BENCH. P3 COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE EXT.P2 REPLY STATEMENT. P4 COPY OF THE ORDER DATED 21/02/2007 IN O.A.NO.893/2004 PASSED BY CAT ERNAKULAM BENCH. P5 COPY OF THE ORDER DATED 24/2/2006 IN O.A.NO.440/2003 OF THE CAT P6 COPY OF THE JUDGMENT DATED 20/03/2009 IN WP(C)NO.15756 OF 2006. P7 COPY OF THE JUDGMENT DATED 15/06/2009 IN WP(C)NO.14954 OF 2009. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE FORMAT OF AGREEMENT FOR COMMISSION VENDOR. R1(B) COPY OF THE JUDGMENT IN T.I.MADHAVAN V. UNION OF INDIA ( 1988 (SUPP) SCC 437). R1(C) COPY OF THE BOARD'S LETTER NO.E(NG) II/78/CL/12 DATED 14/10/80. R1(D) COPY OF THE BOARD'S LETTER NO.E(NG) II/85/CL/6 DATED 28/11/1986. R1(E) COPY OF THE ORDER OF THE CHAIRMAN OF THE RAILWAY BOARD, DATED 19/12/2003. R1(F) COPY OF THE JUDGMENT IN UNION OF INDIA AND OTHERS V. K.V.BABY AND OTHERS (1998) 9 SCC 252. R1(G) COPY OF THE JUDGMENT IN MAHANAGAR RAILWAY VENDORS UNION V. UNION OF INDIA AND OTHERS (1994 SUPP (1) SCC 609). /TRUE COPY/ P.A.TO.JUDGE sts A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------ WP(C) No. 21511 of 2009 ------------------------------------------------- Dated this the 1st day of March, 2011 JUDGMENT A.K. Basheer, J. Petitioners are now working as Helper-II in SSE/Electrical/Ernakulam South Railway Station. They were initially engaged as Commission Bearers in the Southern Railway. 2. Petitioner no. 1 was engaged as commission bearer with effect from 3rd October, 1977 and his services were regularized with effect from July 28, 1989. Petitioner no. 2 was initially engaged as Commission Bearer on June 8, 1979 and regularized on June 23, 2000, petitioner no. 3 was engaged as Commission Bearer with effect from September 29, 1979 and regularized on 3rd April , 1998. 3. Petitioners approached the Central Administrative Tribunal, Ernakulam Bench praying for issue of a direction to the respondents herein to count the uninterrupted period of their continuous services as Commission Bearers for the purpose of grant of pensionary benefits. In the alternative, it was prayed that the respondents be directed to count half of WP(C) No. 21511 of 2009 2 their respective tenure of service as commission bearers after 120 days of continuous service till regularization, for the purpose of grant of retiral benefits. 4. It appears that the above request made by the petitioners was turned down by the Railway Administration as could be seen from Annexure A4 and A7 orders. These two orders were also sought to be quashed before the Tribunal in the original application. 5. The respondents contended before the Tribunal that the claim made by the petitioners was totally misconceived and untenable. It was pointed out that petitioners were paid remuneration on commission basis depending on the total volume of sale articles made by them. Since commission bearers/vendors are not Group C or Group D railway servants, petitioners would not get any benefit under the provisions contained in the Indian Railway Establishment Code. In short the respondents contended that there was no provision to count the service of the petitioners as commission bearers for pension or any other service benefits. 6. The Tribunal after considering the rival contentions of the parties dismissed the original application. The said order is WP(C) No. 21511 of 2009 3 impugned in the original petition filed under Article 227 of the Constitution of India. 7. It may at once be noticed that an identical issue had been considered by the Tribunal on an earlier occasion in O.A No. 440/2003. By order dated February 24, 2006, the Tribunal held that commission bearers like the applicants in that case would be entitled to get half of the service rendered by them as Commission/Salary Bearer before regular absorption for the purpose of pension and other terminal benefits on the analogy of the provisions contained in Indian Railway Establishment Code, which stipulated that half the service rendered by the causal laborers who have joined on temporary status till regular absorption in the post, is eligible to be counted for pensionary benefit. 8. Smt. Sumathy Dandapany, learned senior counsel who appears for the Railway establishment concedes that the above order passed by the Tribunal in the case of a similarly situated employee under the Railway Administration is binding on the administration. However, she points out that the administration has filed a review petition against the above order, which is even now pending consideration before the Tribunal. The above order WP(C) No. 21511 of 2009 4 passed by the Tribunal was confirmed by a Division Bench of this Court in WP(C) No. 15756/2006. It is further admitted by the learned senior counsel that the special leave petition filed before the Supreme Court against the above order was dismissed on the ground of delay. 9. Be that, as it may, the fact remains that in the order passed by the Tribunal in an identical matter it has been held that half the service rendered by the commission bearers shall be liable to be treated as eligible service for the purpose of reckoning terminal benefits. 10. It is primarily contended by Smt. Sumathy Dandapany, learned senior counsel, that the writ petition is liable to be dismissed on the sole ground of delay. It is pointed by the learned senior counsel that the Tribunal had passed the impugned order in February 2007, but the present writ petition has been filed only in July 2009. She contends that delay and laches are writ large on the face of the record which alone would be sufficient to deny any relief to the petitioners. 11. But it has to be noticed that the petitioners are working in a comparatively minor category in the establishment. They have asserted in the writ petition that they came to know about WP(C) No. 21511 of 2009 5 the dismissal of their case by the Tribunal only much later and through another employee. We do not find any reason to disbelieve the version given by the petitioners. Keeping in view the entire facts and circumstances of the case, especially the fact that the issue has been concluded by an earlier order passed by the Tribunal in an identical matter, we do not find any reason to deny the same benefits to the petitioners also. Therefore, the writ petition is allowed. The order passed by the tribunal in O.A No. 893/04 is set aside. It is held that half the period of service rendered by the petitioners as commission bearers till regularization shall be counted for reckoning their terminal benefit like pension as has been held in O.A No.440/2003 on the file of the Central Administrative Tribunal Ernakulam Bench. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. rkc