* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 02.05.2014
Judgment pronounced on: 09.05.2014
+ Review Pet. 117/2014,CMs 3027-29/2014 in W.P.(C) 3774/2011
SHRI KRISHAN & ORS. ...Petitioners
versus
UNION OF INDIA & ORS. ...Respondents
Advocates who appeared in this case:
For the Petitioners : Mr. Sunil Malhotra and Mr J.S. Manhas
For Respondent s : Mr. R.V. Sinha and Ms Devika Jain
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN
JUDGEMENT
V.K. JAIN, J.
This is a petition seeking review of the orders dated 30.03.2012 and 04.05.2012 whereby the writ petition being W.P(C) No.3774/2011 and the Review Petition 280/2012 respectively, filed by the Review Petitioner, were dismissed by this Court.
The review petitioners were working as cooks and helpers in the MESS of the Signalling and Telecommunication Training Centre, Ghaziabad claiming to be railway employees, they filed OA 234/2009 Review Petition 117/2014 in W.P(C) No.3774/2011 Page 1 of 12 before the Central Administrative Tribunal, seeking regularization of their services, in conformity with the provisions applicable to the employees of the non-statutory canteens of the railways.
The OA was opposed by the respondents inter alia on the ground that the mess where the petitioners were working was a private establishment, to serve food to the trainees of different divisions of Northern Railways and NC Railways and was being run by the Temporary Mess Management Committee, consisting of staff members of the Training Centre as well as the trainees. It was also stated in the reply that the Mess workers were privately engaged from the market on payment basis and were paid only for the working days.
The Tribunal took the view that taking into account the provisions of REM, the workers of a non-statutory and non-recognized canteen could not be absolved/regularized as the employees of the railways. However, the respondents were directed to examine and decide the issue of recognition of the canteen as a non-statutory recognized canteen.
2. Pursuant to the order passed by the Tribunal, the petitioners were informed that they could not be equated with non-statutory recognized or unrecognized canteen and could not be treated as regular employees. It was Review Petition 117/2014 in W.P(C) No.3774/2011 Page 2 of 12 also stated in the counter affidavit filed by the respondents the Mess had already been closed down on 25.5.2011 and all the workers had left the Mess on the same day.
3. Having considered the matter in the light of the decision of the Hon'ble Supreme Court in M.M.R. Khan & others v. Union of India & Ors [1990 (Supp.) SCC 191], this Court found that there was no document evidencing recognition of the Mess as a canteen and there was no material to indicate that the said Mess was of the nature of a non-statutory canteen, required to be established under paragraph 2831 of the Railways Establishment Manual and inter alia observed and held as under:
"5. In the case before us, there is no document evidencing recognition of the mess which was being run at Signaling and Telecommunication Training Centre, as a canteen. There is no material on record to indicate that the said mess is of the nature of non statutory canteen required to be established under paragraph 2831 of the Railway Establishment Manual. There is no document evidencing approval of this aforesaid mess by Railway Board either in advance or even ex post facto. There is no evidence of the management of the mess having approached the Review Petition 117/2014 in W.P(C) No.3774/2011 Page 3 of 12 Railway Board before starting the mess for approval/recognition. In case of non-statutory recognized canteens, such a proposal has to be forwarded to the Railway Board, indicating the financial implications involved, duly vetted by the Financial Advisor and General Accounts Officer of the railway concerned, and it is only when the approval is accorded by the Railway Board that the canteen is treated as a non-statutory. Sanction by the railway is also required to indicate the number of staff to be employed in the canteen as well as the recurring and non-recurring expenditure, etc. are to be regulated by Railways. The Tribunal, on examining the matter, found that the aforesaid mess/canteen was not a recognized canteen. We find no reason to take a contrary view of the matter. The letter dated 14.02.2011 written by Railway Board to the General Manager, Northern Railways clearly shows that the mess workers are not comparable with employees of other statutory canteens or non-statutory recognized canteens. It further shows that in terms of the new policy, directions advised under Railway Board's letter dated 19.12.2011, a copy of which was enclosed with the letter dated Review Petition 117/2014 in W.P(C) No.3774/2011 Page 4 of 12 14.02.2011, no new departmental canteens are to be opened nor existing non-recognized canteens are to be departmentalized.
This Court also considered the subsequent decision of the Supreme Court in Management of Reserve Bank of India v. Their Workmen 1996 III AD (SC) 24 and inter alia held as under:
"7. In the case before us, the mess is being managed primarily by the railway employees who come for training at Signaling and Telecommunication Training Centre. The mess cannot be said to be of the Indian Railway merely because the Managing Committee is headed by the principal of the centre or because the Secretary of the Managing Committee happens to be a railway officer. The characteristics noted by Supreme Court with respect to non- statutory recognized canteen are clearly absent in the case of this mess and, therefore, the aforesaid mess cannot be said to be a non-statutory recognized canteen. If the mess is held to be a non- statutory non-recognized canteen, the persons working therein are not railway employees as held Review Petition 117/2014 in W.P(C) No.3774/2011 Page 5 of 12 by Supreme Court in M.M.R. Khan (supra) and consequently they cannot seek regularization in the service of Indian Railways."
Referring to the view taken by the Supreme Court in Civil Appeal No.1197/2007, Union of India v. Ram Singh Thakur & Ors. [2011(7) SCALE], which was a case of some persons working in a mess run by trainee officers in Railway Staff College, this Court was of the view that the mess run by the trainee officers, cannot be said to be a mess run by the railway and the persons working therein cannot be said to be railway employees and, therefore, no direction can be given for their regularization in the service of Indian Railways.
4. Review Petition No.280/2012 was filed by the petitioners seeking recall of the order of this Court dated 30.3.2010 solely on the ground that the subject matter of the dispute should have been heard by the Division Bench and not by a Single Member Bench of the Central Administrative Tribunal. The said review petition, however, was dismissed by us vide order dated 04.05.2012.
A Special Leave Petition was filed by the petitioners before the Hon'ble Supreme Court against the orders passed by this Court on 30.3.2012 Review Petition 117/2014 in W.P(C) No.3774/2011 Page 6 of 12 and 4.5.2012 in W.P(C) No.3774/2011 and Review Petition No.280/2012 respectively. When the Special Leave Petition came up for hearing on 23.11.2012, the learned counsel for the petitioners sought permission of the Hon'ble Supreme Court to withdraw the said petition, with liberty to file a review petition before this Court. The permission having been granted, the present review petition has been filed, seeking review of the order dated 30.3.2012 and 4.5.2012 respectively. Earlier the petitioners had also filed a review petition before the Hon'ble Supreme Court seeking review of its order dated 23.11.2012, but the said petition was dismissed on 19.12.2012.
5. Vide application dated 3.9.2012, the petitioner - Sri Kishan sought certain information from the PIO of the Northern Railways under the provisions of the Right to Information Act, 2005.
Later, an appeal under Section 19 of Right to Information Act was filed by him before the Central Information Commission alleging therein that the canteen was started with the previous approval of the Railway Board which had as a follow-up action granted an amount of Rs.20,000/- to the Mess Management Committee vide its letter dated 9.11.1976, but the copy of the said approval letter dated 9.11.1976 had not been provided to him.
Vide letter dated 18.4.2013 Sri Kishan was informed by the Review Petition 117/2014 in W.P(C) No.3774/2011 Page 7 of 12 Headquarters Office, Northern Railways that the Railway Board's letter number E(Training)-74(35)/7 dated 9.11.1976 was not available in the Principal/HTTC/Gzb and HQ Office. However, an unsigned copy of the aforesaid letter, was found in the record of Principal/HTTC Office and in terms of the direction of CIC, a copy of the said unsigned letter was provided to Mr. Sri Kishan.
6. It is submitted by the learned counsel for the review petitioners that the respondents are guilty of suppressing vital information from the Court by withholding the aforesaid letter dated 9.11.1976 and the aforesaid letter clearly shows that the Railway Board had granted sanction in the year 1976 for opening the canteen S&T Training Centre, Ghaziabad to provide food and refreshment to the Railway Employees undergoing training and living there with families. He also submits that though neither the original letter dated 9.11.2007 nor a photocopy of the said letter is available with the petitioners, the issue of such a letter is evident from its copy being available in the record of Principal /S&T Office. This is also his submission that had the aforesaid letter been filed by the respondents, the petition would not have been dismissed as the persons working in a recognized Railway canteen are entitled to be regularized as railway employees. Review Petition 117/2014 in W.P(C) No.3774/2011 Page 8 of 12
7. As observed by the Hon'ble Supreme Court in M.M. Khan (supra), non-statutory recognized canteens are those canteens which are established with the prior approval and recognition of the Railway Board as per the procedure detailed in the Railway Establishment Manual. As further observed by the Supreme Court, the non-statutory canteens, to be recognized, have to be approved by the Railway Board in advance and every railway administration seeking to set up such canteens is required to approach the Railway Board for their prior approval/recognition indicating the financial implications involved, duly vetted by the Financial Advisor and Chief Accounts Officer of the Railway concern. It was also observed that by sanction, the details in regard to the number of staff to be employed in the canteen, recurring and non-recurring expenditure etc are regulated. As regards the non-statutory non-recognized canteens, the Supreme Court observed inter alia that they are not required to be managed either as per the provisions of Railway Establishment Manual or the administrative instructions and there was no obligation on the Railways to provide them any facilities including furniture, utensils, electricity and water. It was held that in such canteens there is no obligation even on the local institutions to supervise their working and no rules are applicable to the recruitment of Review Petition 117/2014 in W.P(C) No.3774/2011 Page 9 of 12 their workers and the service conditions of such workers.
8. As noted by this Court vide order dated 30.03.2012, there is no evidence of Railway Board having approved the mess in question as a recognized canteen. There is no evidence of railway administration having approached the Railway Board, seeking its prior approval/recognition, indicating financial implications involved, duly vetted by the Financial Advisor and Chief Account Officer of the Railway concern. Had the Railway Board sanctioned the canteen, the sanction would have indicated details such as number of staff to be employed in the canteen, recurring and non-recurring expenditure etc. There is no evidence of the local office of the Railways having been supervising the working of the aforesaid mess. There is no evidence of any Rules and Regulations prescribed by the Railways having been applied to the recruitment of the workers employed in the said mess/canteen.
A perusal of the order dated 4.3.2011 written to the Mr. Sri Kishan would show that the mess in question was a private establishment only to serve the food to the trainees and the mess workers were privately engaged from the local market. They were being paid by the Mess Management Committee only for the working days. No salary was paid to them when Review Petition 117/2014 in W.P(C) No.3774/2011 Page 10 of 12 they were absent or on leave. There was no Railway Management Committee for running a mess, it was being run by the trainees attending training programmes and such trainees changed from time to time.
9. The letter dated 19.11.1976, an unsigned typed copy of which [bearing the dated 19.01.1976] has been filed with the review petition would only show that only an advance of Rs.50,000/- was sanctioned for the Mess Management Committee and the said advance was approved by the Railway Board vide its letter dated 1.11.1976. The amount of the advance was to be paid back to the Railways within a period of one year. The payment of a refundable advance, in our opinion, does not amount to recognition of the canteen/mess by the Railway Board. Had the canteen/mess in question been recognized by the Railway Board, there would have been a proper sanction issued in this regard. The sanction would have been given only at the request of the Railway Administration seeking to set up a canteen/mess in the premises of the training centre, for the benefit of the trainee officers. The proposal seeking sanction of the Railway Board would have indicated the financial implications involved in the proposal, duly vetted by the Financial Advisor and Chief Account Officers of the concerned Railways. The sanction would have indicated the details such as number of staff members Review Petition 117/2014 in W.P(C) No.3774/2011 Page 11 of 12 to be employed in the canteen, recurring and non-recurring expenditure and the management of the canteen/mess would have been supervised by the concerned office of the Indian Railways. The workers in that case would have been engaged by the Railway Administration and not by the members of the Mess Committee which had no statutory backing or recognition from the Railway Board. Therefore, even if we proceed on the assumption that the aforesaid letter dated 19.11.1976 was actually issued by Headquarters of the Northern Railways to the ASTE Training Centre, Ghaziabad, that would not amount to recognition of the mess in question as a canteen by the Railway Board.
No other contention was raised before us. We find no merit in the review petition and the same is hereby dismissed.
No order as to costs.
V.K. JAIN, J.
BADAR DURREZ AHMED, J MAY 09, 2014/rd Review Petition 117/2014 in W.P(C) No.3774/2011 Page 12 of 12