IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.04.2010 CORAM: THE HON'BLE MR.JUSTICE D.MURUGESAN AND THE HON'BLE MR.JUSTICE M.SATHYANARAYANAN WRIT PETITION No.1536 of 2009 and M.P.No.1 of 2009 1. The Union of India, rep. by the Chief Personnel Officer, Southern Railway, Park Town, Chennai-600 003. 2. The Chief Commercial Manager, Southern Railway, Park Town, Chennai. 3. Assistant Personnel Officer, Office of the Chief Electrical Workshop Engineer, Perambur, Chennai. ... Petitioners/Petitioners Versus 1. V.Mani 2. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-600 104. ... Respondents/Respondents Writ Petition under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari to call for the entire records of the second Respondent in O.A.No.334 of 2007 including the order dated 2.5.2008 and quash the same. For Petitioners .. Mr.V.G.Sureshkumar For Respondents .. Mr.Balan Haridas for R1. R2 – Tribunal. https://hcservices.ecourts.gov.in/hcservices/ O R D E R M.Sathyanarayanan, J The Respondents in O.A.No.334 of 2007, on the file of the Central Administrative Tribunal, Madras Bench, had filed this writ petition challenging the order dated 2.5.2008 made in the above said Original Application. 2. As per the impugned order dated 2.5.2005 passed by the Tribunal, the appointment order dated 16.3.2006 treating the applicant/first Respondent herein as a fresh entrant has been quashed and the Tribunal further directed the petitioners herein to absorb the applicant into service from the date on which the similarly placed persons viz., H.Piruthviraj and 5 others were absorbed by fixing the basic scale of pay as Rs.2610/- from the date of absorption and to accord all other consequential benefits to the applicant/ first Respondent herein by treating the period of service rendered by him as continuous service. 3. The first Respondent joined the services of the Departmental Catering Unit of the Southern Railway as a Commission Bearer on 22.12.1978 and according to him, he had been working in that capacity till 14.6.1999. 4. The Hon’ble Supreme Court of India, in Sital Singh –v- Union of India in W.P.No.6804/05/82 dated 13.12.1983, has formulated a Scheme for absorption of Commission Bearers and Vendors working on platforms belonging to the Central Railway and the Southern Railway. Subsequently, mention was made before the Hon’ble Supreme Court of India by the Union of India submitting that the above said order needs modification with regard to the date from which, the salary and other emoluments are payable to them upon absorption. The Hon’ble Supreme Court of India taking into consideration the said submission has passed the following order on 8.9.1987 reported in 1988 Supp. SCC page 437 – T.I. Madhavan, Gen. Secy., All India Rly. Catering Services Workers' Union v. Union of India, and the same is extracted below: “We accordingly direct that all persons working as commission bearers and vendors on various railway platforms belonging to the Central Railway and the South Central Railway would be absorbed progressively as members of the permanent Railway Catering Service as per the terms of paragraph 3 of the Memorandum No. 76 TG III/639/11 dated December 13, 1976 issued by the Joint Director, Traffic Commercial (c) II, https://hcservices.ecourts.gov.in/hcservices/ Railway Board, New Delhi, as and when vacancies to the posts of bearers in the Railway Catering Service occur. As directed by this Court in Saital Singh’s case the concerned Railway Administrations would first absorb all the bearers who are registered in accordance with the aforesaid memorandum, thereafter the vendors who are so registered and until all the bearers and vendors are accordingly absorbed, the Railway Administrations shall not recruit or appoint any person either as a bearer or vendor on permanent basis in Railway Catering Service from any other source. In view of this, we must necessarily modify the direction contained in this Court’s order dated March 10, 1986 as to payment of salary. In modification of the earlier direction, we direct that the vendors and bearers so absorbed in the Railway Catering Service shall be entitled to salary as from the date of their absorption and not from December 1, 1983.” 5. According to the first Respondent, he is entitled to the benefit of the above said order. It is the further case of the first Respondent that due to Chronic Ulcer and Pulmonary Tuberculosis, he availed leave from 15.6.1999 and after curing of the illness, joined the duty on 12.7.2002. 6. The first Respondent was issued with show cause notice dated 8.10.2002 alleging unauthorized absence and he has submitted his explanation on 22.10.2002 by enclosing medical certificate for his absence. 7. The second petitioner herein vide order dated 8.11.2005, had taken the first Respondent as a fresh entrant and posted him to Godown at Royapuram under the control of the Chief Catering Inspector and his basic pay was fixed as Rs.2610-3540/- 8. Subsequently, the first Respondent was issued with a letter of appointment dated 16.3.2006 in Appointment Order No. 31/2006 appointing him as Temporary Helper Grade II in Group D services and it was also indicated on absorption, his pay will be fixed in the scale of pay of Rs.2550-3200/-. 9. The first Respondent joined the duty in pursuant to the said appointment but according to him, past services have not been taken into consideration. . https://hcservices.ecourts.gov.in/hcservices/ 10. The grievance of the first Respondent seems to be that he ought to have been regularized in the Catering Department and he cannot be posted as Helper Grade II (Kalasi) and that his past services right from the year 1978 have not been taken into consideration and he has been taken as a fresh entrant. 11. Since the grievance of the first Respondent has not been redressed, he filed O.A.No.334 of 2007 praying for the quashment of the order of appointment dated 16.3.2006, in so far as treating him as fresh entrant and for other consequential reliefs. 12. The petitioners herein who were arrayed as Respondents in the said Original Application filed a reply stating that out of the 8 Commission Bearers whose services were terminated, six others made request praying for reinstatement and also offered explanation for their absence and hence they were reinstated as fresh entrant. 13. It is further contended that the first Respondent was initially engaged as a Bearer on commission basis on 22.12.1978 and was terminated from service for his unauthorised absence from duty from 15.6.1999 to 11.7.2002. The first Respondent also did not choose to respond to the show cause notice. It is further contended the first Respondent earlier filed O.A.No.341 of 2005 and the Tribunal vide order dated 28.9.2005, has directed the Respondents therein to issue orders to him to join duty as Bearer within a period of four weeks and further process of absorbing his service will be carried out in due course in consonance with the order of the Hon'ble Supreme Court of India reported in 1988 Supp. SCC 457(cited supra). It is further stated in the reply statement in compliance of the above said order, the first Respondent was absorbed as Helper Grade II in Group D post (Kalasi) in the scale of pay of Rs.2550-3200 at the Chief Electrical Workshop Engineer, Perambur on 16.3.2006. It is further stated that since others who were similarly placed like that of the first Respondent were taken back for duty as they submitted their explanation for their absence and they were treated as a fresh entrant only. Since the first Respondent is also placed like that of the above said six persons, he was given employment treating him as a fresh entrant. 14. It is the specific case of the Respondents in the said reply statement that his service benefits will be counted only from the date of appointment as a fresh entrant on 16.3.2006 and not from the initial appointment on 23.12.1978 and hence for the said reasons, prayed for the dismissal of the Original Application. 15. The Tribunal on taking into consideration the materials available on record, found that there is no plausible explanation provided by the Respondents in the O.A. as to why the applicant / first Respondent herein was not absorbed as a Commission Bearer and https://hcservices.ecourts.gov.in/hcservices/ that he was not treated on par with six others i.e. H.Piruthviraj and 5 others who were similarly placed like him. The Tribunal for the said reasons has allowed the application and aggrieved by the same, the Respondents in the said O.A. had filed this writ petition. 16. Heard the submissions of Mr.V.G.Sureshkumar, learned counsel appearing for the petitioners and Mr.Balan Haridas, learned counsel appearing for the first Respondent and this Court has also perused the averments made in the writ petition and the typed set of documents filed by both the parties. 17. A perusal of the order passed by the Hon’ble Supreme Court of India, reported in 1988 Supp. SCC page 437 (cited supra) would disclose that the earlier order dated 10.3.1986 was modified and the Respondents therein were directed that the vendors and bearers so absorbed in the Railway Catering Service shall be entitled to salary as from the date of their absorption and not from 1.12.1983. 18. The learned counsel appearing for the petitioner has invited our attention to the judgment of the Hon’ble Supreme Court of India reported in (1998) 9 SCC page 252 – Union of India and others –v- K.V.Baby and another, wherein the decision of the Central Administrative Tribunal Ernakulam Bench directing the Railway Authorities to regularize the services of the Respondents therein and treating them on par with regular salaried bearers/waiters was challenged. In the said decision, the Hon’ble Supreme Court of India, has taken into consideration its earlier decision reported in 1988 Supp SC page 437 – T.I.Madhavan –v- Union of India, has held as follows: “The respondents, however, contend that pending their absorption they must be paid the same salary as regular employees, as they are doing similar work. They have also contended that the Railways have the same disciplinary control and power over them as over their regular employees. The Tribunal has accepted this contention and granted them the same emoluments as the regular employees. However, persons who are engaged on the basis of individual contracts to work on a commission basis cannot, by the very nature of their engagement, be equated with regular employees doing similar work. Their appointment and mode of selection, their qualifications cannot be compared with regular employees. The Recruitment Rules and service conditions of Southern Railways do not apply to these https://hcservices.ecourts.gov.in/hcservices/ employees. Since they are not regular employees on the cadre of Railway Catering Service, we fail to see how they can contend that they are subject to the disciplinary jurisdiction of the Railway authorities under the relevant Rules. Their responsibilities cannot be equated with the responsibilities of regular employees. Our attention has been drawn in this connection to a decision in the case of State of Haryana v. Jasmer Singh(1996)11 SCC 77) (to which one of us was a party), where this Court has, for reasons set out therein, declined to equate daily-rated workers with regular employees for similar reasons. In a subsequent case of State of Haryana v. Surinder Kumar (1997)3 SCC 633) employees who were engaged on a contract basis were not considered as on a par with regular employees for the purposes of their salary and other benefits. In the case of T.I. Madhavan v. Union of India (1988 Supp SCC 437) also, this Court, although it did not go into this question, directed that the salary of a regular employee can be paid to such employees only from the date of their absorption. In the premises, the appeals are allowed and the impugned judgment of the Tribunal is set aside. However, the respondents are entitled to absorption in the same manner as directed in T.I. Madhavan v. Union of India (1988 Supp SCC 437) and will be entitled to salary as regular employees from the date of their absorption”. Therefore, the learned counsel appearing for the petitioners would submit that as per the above cited decision of the Hon’ble Supreme Court of India, the Respondent is entitled to payment of salary only from the date of his absorption and not anterior to that date. It is also contended by the learned counsel appearing for the petitioners that similarly placed persons H.Piruthviraj and 5 others were absorbed only as a fresh entrant and therefore it is not open to the first Respondent to contend otherwise. 19. In reply to the said submissions made by the learned counsel appearing for the petitioners, Mr.Balan Haridas, learned counsel appearing for the first Respondent has invited the attention of this Court to the proceedings of the Southern Railway dated 14.01.2004, wherein the services of one K.Jayaraman, who is similarly placed like that of the first Respondent was regularized with effect from 06.07.1987 and therefore, the first Respondent has been rightly https://hcservices.ecourts.gov.in/hcservices/ conferred with the said benefit under the impugned order passed by the Tribunal. Our attention was also drawn to the proceedings of the Southern Railway dated 20.02.1997. The said proceedings relating to the provisional seniority of Bearers and the date of confirmation is indicated as 01.08.1983. 20. We have carefully considered the rival submissions. The Hon’ble Supreme Court of India in the decision reported in 1988 Supp SC page 437 (cited supra), which has been followed in 1998 (9) SCC page 252 (cited supra), has clearly held that the salary of the regular employee can be paid only from the date of absorption. In fact in 1988 Supp SC 437 (cites supra) has clearly indicated that the vendors and bearers so absorbed in the Railway Catering Service shall be entitled to salary as from the date of their absorption and not from 1.12.1983. 21. As regards the contentions put forth on behalf of the first Respondent that persons similarly placed viz., H.Piruthviraj, and 5 others were given salary from the date of their earlier appointment, we have perused the proceedings issued by the Office of the Chief Electrical Workshop Engineer, Perambur, Chennai-23 dated 28.5.2004, which would indicate that Thiru.H.Piruthviraj and 6 others were absorbed only from 28.5.2004 i.e. the date of the order and not anterior to that date. Even in respect of Mr.K.Jayaraman also, the proceedings dated 1.6.2004 issued by the same office would indicate that he was absorbed only from 1.6.2004. 22. In the light of the above said proceedings, the reasons adduced by the Tribunal that the earlier order dated 28.9.2005 made in O.A.No.341 of 2005 has not been given effect and that the first Respondent is not treated like that of H.Piruthviraj and 6 others are unsustainable. In fact, the earlier orders passed in O.A.No.341 of 2005 make it clear that it should be in accordance with the direction of the Hon’ble Supreme Court of India reported in 1988 Supp SCC 437 (cited supra) and in the said decision, it has been held that the absorbed vendors and bearers shall be entitled to salary only from the date of their absorption and not from 1.12.1983. 23. Therefore, the impugned order passed by the Tribunal cannot be sustained. 24. In the result, the writ petition is allowed and the impugned order dated 22.5.2008, passed by the Tribunal, is set aside. However, the order passed in this writ petition will not preclude the petitioners herein from considering the case of the first Respondent for treating the period from 22.12.1978 to 14.6.1999 as pensionable https://hcservices.ecourts.gov.in/hcservices/ service and it is also open to the first Respondent to submit a representation in this regard. The petitioners herein on receipt of such representation are directed to consider the same on merits and pass orders thereon as expeditiously as possible. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gr. To The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-600 104. + 1 cc to Mr.Balan Haridass, Advocate SR 28349 W.P.No.1536 of 2009 PKB (CO) RH (3.5.10) https://hcservices.ecourts.gov.in/hcservices/