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Judgment
Heard Shri Vinod Kumar, learned counsel for the applicants Shri Pramod Kumar Rai along with Shri Raj Pal Singh, learned counsel for the respondents on the maintainability of the present OA.
The present Original Application has been filed by the applicants seeking the following reliefs:-
A. To issue an order or direction in the suitable nature directing the respondents department to consider the claim of the applicant for the purpose of screening and absorption against the Group "D" vacancies within stipulated period of time and pay the arrears of salary.
B. To issue any order or direction, which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
C. To award the cost of the application to the applicant.”
Brief facts of the case, as narrated in the O.A., are that the applicant claims to have been engaged by Respondent Nos. 2 and 3 under the Railway Department as a casual labourer on daily wages. He has pleaded that initially he was paid Rs. 400/- per month, which was subsequently enhanced to Rs. 600/-, Rs. 800/-, Rs. 1,000/- and Rs. 1,500/- per month, and that he is presently receiving Rs. 2,000/- per month as remuneration. It is further pleaded that the Entertainment Institute, North Eastern Railway, Mailani, Kheri, is owned and governed by the Indian Railways and that, pursuant to a circular issued by the North Eastern Railway in the year 1979 for preparation of the final panel of casual labour/substitutes for absorption in Class-IV posts, the Institutes, Welfare Centres, Clubs and Homoeopathic Dispensaries were also included for consideration, wherein casual labourers were working. The applicant claims to have been working under Respondent No. 3 since the year 2004 and states that he has made several representations seeking his absorption against a Group-D post in the Railway Department; however, the respondents have failed to process or consider his representations. Accordingly, the applicant has prayed for a direction to the respondents to absorb him against a Group-D vacancy in the Railway Department. In support of his claim, the applicant has filed, inter alia, Annexure No. 1 comprising cheques issued towards his remuneration, a letter dated 18.05.2015 issued by the NER, Mailani, and Annexure No. 3 comprising certificates issued by the Recreation Club, NER, Mailani, in
By way of filing the counter affidavit, learned counsel for the respondents submitted that the applicant is not an employee of the Railway Department and that there exists no relationship of employer and employee between the applicant and the respondents. It is contended that, at no point of time, was any offer of appointment issued to the applicant, nor was any remuneration paid to him from the Consolidated Fund of India, and therefore, he cannot be treated as a casual labourer appointed in the Railway Department. It is further submitted that the Institute where the applicant claims to have been engaged is a club in which membership of railway employees is optional and whose funds are primarily generated through membership fees and contributions made by its members. Merely because the Railway Department extends certain facilities or financial assistance to the Institute from time to time, no relationship of employer and employee can be presumed to exist between the applicant and the respondents. It is, therefore, contended that the dispute raised by the applicant is essentially between him and the concerned Entertainment Institute and does not fall within the jurisdiction of this Tribunal. Accordingly, the respondents have prayed that the O.A., being not maintainable before the Tribunal, be dismissed.
I have heard the learned counsel for the parties.
The learned counsel for the applicant submitted that the applicant was engaged in the year 2004 against the vacant post of Chaukidar under Respondent No. 3 and has been continuously discharging his duties since then. It is contended that his wages/remuneration were enhanced from time to time and were paid through cheques, as is evident from the photocopies of the cheques annexed with the O.A. Learned counsel further submitted that the Entertainment Institute is owned and controlled by the Railway Department, as is evident from the letter dated 15.09.1979 issued by the North Eastern Railway, and that the applicant is entitled to absorption as he fulfils the conditions prescribed for such absorption. It is, therefore, prayed that the O.A. be allowed and the respondents be directed to absorb the applicant against a Group-D post. It is further submitted that, since the Entertainment Institute (Respondent No. 3) is owned and governed by the Railway Department, the dispute falls within the jurisdiction of this Tribunal and the O.A. is accordingly maintainable.
Learned counsel for the respondents argued that the Entertainment Institute, NER, Mailani, is an entertainment institution falling within the definition of a recreation club, wherein membership is optional and all railway employees are not necessarily its members. It was submitted that the funds of the Institute are generated through membership fees and subscriptions/contributions made by its members. Learned counsel further submitted that a similar issue had earlier come up before the Lucknow Bench of this Tribunal, wherein the O.A. was dismissed with the observation that the applicant’s claim was devoid of merit. It was further contended that an identical issue was considered by the Hon’ble Supreme Court in All India Railway Institute Employees v. Union of India, decided on 27.02.1990, wherein it was held that employees engaged in such institutions do not have an employer-employee relationship with the Railway Department. On the strength of the aforesaid submissions and judicial pronouncements, learned counsel for the respondents argued that the present O.A. is not maintainable before this Tribunal and deserves to be dismissed. To substantiate his submissions, learned counsel for the respondents placed reliance upon the following judgments:
I. Judgment and order passed by Hon’ble Supreme Court in All India Railway Institute Employees vs. Union of India through the Chairman, decided on 27.02.1990. (1990 AIR 952)
II. Judgment passed by CAT Lucknow Bench in OA no. 294/2018 (Sanjay Maseeh vs. Union of India and ors).
I have considered the rival submissions and gone through the entire records.
In the present matter, as is evident from the record, the applicant claims to have been engaged in the year 2004 under the Entertainment Institute, NER, Mailani. He was initially paid remuneration of Rs. 400/- per month, which was subsequently enhanced from time to time up to Rs. 2,000/- per month, and the payments were regularly made through cheques. The respondents, however, have categorically taken the stand that the Entertainment Institute is neither a Government establishment nor owned or controlled by the Railway Department and, therefore, no relationship of employer and employee exists between the applicant and the respondents. In view of the aforesaid position, the letter dated 15.09.1979 issued by the North Eastern Railway, on which reliance has been placed by the applicant, is not applicable to the facts and circumstances of the present case.
Before discussing the submissions raised across the BAR, it will be useful to quote the relevant part of the letter dated 15.09.1979. The same is as under:-
3.4500 working days from 1.5.79 for staff employed in until government administrations connected with Railway work:-
(a)Cooperative Stores/Societies/Canteens
(b)Staff canteens
(c)Handicraft centre
(d)Venous and commission bearers
(e)Sports and cultural organization.
3.4.1The calculation for the purpose of assessment of service of 500 days in such cases will be as under:-One half the number of days is to be taken upto 30.10.73 i.e. the date of Board's letter No. 15(NG)III- 73/27 dated 30.10.73 and full service thereafter. For calculation of the number 01 days in their cases, if has been decided that the officers cotenant will have to ensure that such persons are given pats similar to causal labour cards where the entire service is recorded are is certified that the initial of a gazet officer-incharge of such quasi Govt. Units.
3.5These who have failed in any previous panels should not be reconsidered for screening.
It will also be useful to quote the relevant paras of the All India Railway Institute Employees (supra) case. The same is as under:-
6.After considering the respective contentions of the parties and the documents on record, we are of the view that there is a material difference between the canteens run in the Railway establishments, and the Railway Institutes and Clubs. In the first instance, the canteens are invariably a part of the establishments concerned. They are run to render services during the hours of work since the services, by their very nature are expected directly to assist the staff in discharging their duties efficiently. The lack of canteen-facilities is ordinarily bound to hamper and interfere with, the normal working of the staff and affect their efficiency. The importance of the services rendered by the canteens to the staff in the day-to-day discharge of their work therefore needs no further emphasis. Suffice it to say that the canteen services are today re- garded as a part and parcel of every establishment. So much so that they have been made statutorily mandatory under the Factories Act, 1948 in establishments governed by the said Act where more than 250 workers are employed. The canteen- services are thus no longer looked upon as a mere welfare activity but as an essential requirement where sizable number of employees work. That is why even the Railway Administration has, by its Establishment Manual made a provision for canteens even where the Factories Act does not apply, and has laid down procedure for their registration and approval and for extending to them almost the same facilities and monetary assistance as in the case of the statutory canteens. However, the same cannot be said of the Institutes and Clubs. Although for them also the Railway Establishment Manual makes provisions in the same Chapter XXVIII dealing with Staff Welfare, the provisions are of a materially different nature and pattern. In the first in- stance, there is no provision either for subsidy or loan directly from the funds of the Railway Administration. The Institutes/Clubs have to run on the membership fees and fixed grants received from the Staff Benefit Fund. The Fund consists of receipts from the forfeited provident fund and bonus, and of fines. The grant is made as pointed out by the Respondents, to each Institute/Clubs at the rate of Rs. 14 per capita of the non-gazetted staff employed at the rele- vant establishment. Out of this contribution, only Rs.4 per capita are spent on the activities of the Institutes and Clubs, the rest of the amount being spent on education, relief in case of distress and sickness, sports, scouts activities and for other miscellaneous purposes. There is further no dispute that the wages and allowances of the staff of the Institutes/Clubs are paid by the Institutes/Clubs themselves and they are not subsidised by the Railway Administration as in the case of the statutory and nonstatutory recognised canteens.
5-A. By their very nature further the services of the Institutes/ Clubs are availed of beyond working hours only. It is common knowledge that not all members of the Railway- staff avail of them. One has to be a member to do so by paying fees. The membership is also optional. That is why most of the staff employed in the Institutes/ Clubs is part time. As has been stated by the respondents, out of about 1741 employees engaged in 449 Institutes and 332 Clubs nearly half are part time employees. The services rendered by the employees are not of a uniform nature. They are engaged for different services with different, service conditions according to the requirement. The Institutes/Clubs further do not engage in uniform activi- ties, the activities conducted by them varying depending upon the infrastructure and the facilities available at the respective places.
7.What is more importance as far as the issue involved in this petition is concerned, is that the provision of the Institutes/Clubs is not mandatory. They are established as a part of the welfare measure for the Railway staff and the kind of activities they conduct depend, among other things, on the funds available to them. The activities have to be tailored to the budgets since by their very nature the funds are not only limited but keep on fluctuating. If the costs of the activities go beyond the means, they have to be curtailed. So also, while starting a new activity, it is necessary to take into account its financial implications and the capacity of the Institute/Club to raise the neces- sary funds. The only varying component of the funds is the membership fee which is uncertain.
8.If as contended by the petitioner Association the workers engaged in these Institutes/Clubs are treated as Railway employees, the danger is that these welfare activi- ties which are otherwise encouraged by the Railway Adminis- tration may in course' of time shrink and cease altogether for want of funds. This will not be in the interests of the workers themselves. One cannot lose sight of the fact that today the emoluments of government servants including those of the Railway employees, may they belong to Class IV or to a higher category, are substantial and inhibit fresh re- cruitment. The services rendered by a government agency, therefore, become costly and uneconomical. Compared to the services which are rendered by the Institutes/Clubs and the benefits which flow from them, an increase in their adminis- trative expenditure which may result from granting the status of the railway employees to their workers. will be disproportionately high and forbidding. This will also have a snow-bailing effect on other welfare activities carried on by the Railways and similar activities carried on by all other organisations. We also cannot lose sight .of fact that the workers engaged in the welfare activities today are drawn from the respective localities without restrictions of the qualifications of education, age etc. Whatever little scope for employment is available to the local population at the respective places may also vanish with the cessation of these activities. After all, the number of employees who may benefit by becoming railway employees does not today exceed 887 who are the full time employees scattered all over the country. But, they may deprive many of their bread in the presenti and in the future. For, as pointed out by the Respondents, if the Railway Service Rules are made applicable, many of the present employees will also have to face immediate unemploy- ment. This is of course yet a larger related socio-economic consideration.
9.On the facts placed before us which we have discussed above, we are also not persuaded to hold that there is a relationship o[ employer-employee between the Railway Admin- istration and the employees engaged in the Institutes and Clubs. Neither law nor facts spell out such relationship. If the present service conditions of these employees are unsat- isfactory, the remedy lies elsewhere.
Similarly, it is also pertinent to reproduce the operative portion of the Sanjay Maseeh (supra) case. The same is as under:-
From the perusal of the records it is evident that the applicant was not appointed by any competent authority of the Railways. Applicant has not filed any appointment order. As applicant has filed no appointment order or no allotment letter with regard to providing residence to the applicant, hence, the case of the applicant is devoid of merit and is liable to be dismissed.
Admittedly, the applicant is working under the Entertainment Institute, NER, Mailani; however, no appointment letter was ever issued by the Railway Department in his favour, nor were the cheques annexed with the O.A. issued by the Railway Department. The said cheques were issued by the authorised functionary of the Entertainment Institute. Further, if the language of the letter dated 15.09.1979 is taken into consideration, the eligibility for screening has been prescribed under paragraphs 3, 3.1, 3.2 and 3.4, while the manner of computation of service for assessing the requirement of 500 days has been specifically provided in paragraph 3.4.1, which clearly stipulates that “One half the number of days is to be taken upto 30.10.73 i.e. the date of Board's letter No. 15(NG)III-73/27 dated 30.10.73 and full service thereafter.” In view of the aforesaid stipulation, and considering the applicant’s own case that he was engaged only in the year 2004, the mode of calculation prescribed under the said letter, particularly the requirement relating to service rendered up to 30.10.1973, cannot be applied to the applicant. Consequently, the letter dated 15.09.1979 is not applicable to the facts of the present case, and the applicant cannot claim the benefit of screening/absorption thereunder.
Apart from the aforesaid, if the ratio laid down by the Hon’ble Supreme Court in All India Railway Institute Employees v. Union of India (supra) is taken into consideration, it is clear that no relationship of employer and employee exists between the applicant and the Railway Department. The Hon’ble Supreme Court has also held, in the facts and circumstances of a similarly situated matter, that the remedy available to the employees of such institutions lies elsewhere and not before the Central Administrative Tribunal. In view of the law laid down by the Hon’ble Supreme Court and the findings recorded hereinabove, I am of the considered view that the applicant’s prayer for absorption in the Railway Department is not maintainable before this Tribunal. Since no relationship of employer and employee exists between the applicant and the Railway Administration, as observed hereinabove, there is no necessity to examine the merits of the claim as well as other issues raised in the OA. Accordingly, the O.A., being devoid of merit and not maintainable before this Tribunal, is liable to be dismissed and is, accordingly, dismissed. No order as to costs.
All connected Misc. Applications also stand disposed of.