K.A. Kunjunni & Ors. vs Union Of India & Ors.

HON'BLE Ms.V.RAMA MATHEW, ADMINISTRATIVE MEMBER

The original applicant, Shri.K.A.Kunjunni, has filed this O.A aggrieved by the inaction on the part of the respondents in not reckoning his service as Commission Bearer and Salaried Commission Bearer for the purpose of his service benefits.

The brief facts of the case are - the applicant claims to have entered the services of the railways in Catering Department as a Commission Bearer on 14.03.1970 and on 14.03.1981 he was regularized as Catering Service/Waiter in Electrical Department in Train Lighting and A/C. He retired on 31.08.2010. He submits that he was neither granted promotion nor financial upgradation under MACP Scheme even after completion of more than 30 years of service. Further, the respondents while calculating the pensionary benefits did not take into account the service rendered as Commission Bearer from the date of initial appointment on the basis of the order of the Hon'ble Supreme ^{Court (citation not mentioned).}Central Administrative Tribunal ^{He passed away on 29.03.2020. His} legal heirs were impleaded themselves in this O.A vide order dated 19.09.2023 in M.A.No.374/2020.

As grounds it is stated that the Ernakulam Bench of this Tribunal in T.A.K.No.316/1987 (Sivaraman & Ors. vs. Union of India) following the dictum laid down by the Hon'ble Supreme Court held that there exists a master and servant relationship. Railways has got absolute supervision and control and nature of relationship is of contract of service between Commission Bearers and Railways. Commission Bearers borne on the regular rolls of Railways are entitled to reckon their services from the date of initial entry into service for all purposes. Further he has relied on the order of this Tribunal in O.A.No.440/2003, O.A.No.311/2010, O.A.No.360/2011 and O.A.No.417/2013 wherein similarly placed Commission Bearers were granted pensionary benefits calculated by taking into account their Commission Bearer services and claimed that there is no justifiable reason to deny the same benefits to him. The reliefs sought in the O.A are as follow -

It has been very clearly held in O.A.No.180/945/2019 and connected cases that based on the length of service as Commission/Salary Bearers the applicant would not be eligible for the grant of financial upgradation benefits under the MACP Scheme. However, here his claim is for gratuity. The applicant has been denied gratuity by non inclusion of 50% of 11 years of his service for determining the eligibility. The applicant has produced Annexure A-1 receipt of the Depositor's Foil dated 14.03.1970 as evidence for his being a Commission Bearer in the year 1970. However, we notice that there is over-writing and interpolation in the said receipt and in the copy of the Pension Payment Order (PPO) it is clearly noted that his service as Commission Bearer has not been included for the purposes of determining his eligibility for gratuity.

The grievance of the applicant is that though the applicant worked as Commission Bearer and as Salaried Commission Bearer, the service from the date of regularization alone was reckoned, which is illegal. Hence, he sought inclusion of 50% of service as Commission Bearer for grant of pensionary benefits in view of the decision of the Hon'ble Supreme Court in the case of Union of India & Ors. vs. Munshi Ram, 2023 (2) SLR 570 (SC) wherein it was held that Commission Bearers are entitled to have 50% of their services rendered prior to their regular service to be counted for pensionary benefits. In this particular case the question is not for the eligibility of inclusion of 50% of service as Commission Bearer but lack of available records to verify his service of 11 years as Commission Bearer. While we agree that at this length of time it would be difficult to verify the service from 1970 to 1981, we also note that at the time of retirement he had an admitted service of 29.5 years and the required service for payment of gratuity at the time of his retirement is 33 years. The resulted shortfall requires minimum 7 years service as a Commission Bearer whereas he claims to 11 years service as Commission Bearer.

^6.Central Administrative Tribunal ^{Further, Annexure A-3 order of absorption of Commission Bearer} dated 06.03.1981 fixed the seniority of the applicant in service at Sl.No.32. It is very clear from that order that he was a Commission Bearer with sufficient service for regularization as on that date. It is the claim of the applicant that the juniors in that list have been found eligible for gratuity which would indicate that he had sufficient service.

Though the reply statement stated in a number of cases the respondents have argued that Commission Bearers being not salaried employee their services were not eligible to be included for the purposes of eligibility for gratuity and pensionary benefits. However, that matter was settled in view of the decision rendered by the Tribunal, confirmed by the Hon'ble High Court and Hon'ble Supreme Court (cited supra) and hence that matter is no longer res integra.

In view of the claim that juniors of the applicant in the same order dated 06.03.1981 had been granted gratuity and pensionary benefits, the same shall be verified by the Railways and if the claim of the applicant is found to be correct, the applicant is eligible for payment of gratuity and pensionary benefits. Ordered accordingly. This exercise shall be ^{completed within a period of three months from the date of receipt of a}Central Administrative Tribunal copy of this order. The O.A is disposed of accordingly. No order as to costs.

Annexure A-1 – A copy of the receipt No.90011 dated 14.03.1970 of Southern Railway.

Annexure A-2 – A copy of the Pension Payment Order.

Annexure A-3 – A copy of the Office Order No.629 dated 06.03.1981.

Annexure MA-1 – A copy of the Death Certificate bearing Registration No.46/2020 dated 29.04.2020 issued by the Parakkadavu Grama Panchayath, Department of Panchayath, Government of Kerala.

Annexure MA-1 – A copy of the relevant extract of the Kerala Gazette dated 10.11.2020 (with English translation)

Annexure R-1 – A copy of the agreement executed by one of the Commission Bearers as specimen.

Annexure R-2 – A copy of the orders of Hon'ble Supreme Court in ^{W.P.No.191/86.}Central Administrative Tribunal

Annexure R-3 – A copy of the judgment of Hon'ble Supreme Court in K.V.Baby's cases reported in (1998) 9 SCC 252.

Annexure R-4 – A copy of the order No.2003/TG-III/639/13/SR passed by the Chairman/Railway Board.

Annexure R-5 – A copy of the Rule 14 (xiv) 24 and 31 of the Railway Services (Pension) Rules, 1993.