Shri Krishan & Ors vs Union Of India & Ors
2012 Latest Caselaw 2208 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Judgment reserved on: 13.03.2012
                                            Judgment pronounced on: 30.03.2012

+       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
For Respondent s      : Mr R.V. Sinha

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

1. This writ petition is directed against the orders dated 21.09.2010 and

16.11.2010 passed by the Central Administrative Tribunal, Principal Bench, New

Delhi (hereinafter referred to as the Tribunal), whereby OA No. 2341/2009 and RA

No. 295/2010 in OA No. 2341/2009 respectively were dismissed. The petitioners

are working as Cooks and Helpers in the Signaling and Telecommunication

Training Centre, Ghaziabad. The Mess is managed by a Managing Committee

chaired by the principal of the Centre and the emoluments to the petitioners are

paid by the Secretary of the Managing Committee. Claiming to be railway

employees, the petitioners filed OA No. 2341/2009, seeking regularization of their

service in conformity with the provisions applicable to the employees of the non-

statutory canteens of the Railways. The OA was contested on the ground that

Signaling and Telecommunication Training Centre, where the applicants were

working, was a Private Establishment to serve food to Trainees of different

Divisions of Northern Railway and N.C. Railway which is run by a temporary

Mess Management Committee, consisting of staff members of the training Centre

and trainees. It was further stated in the reply filed by the respondents that the

mess was being run from the mess funds coming from different divisions by raising

the debit on FA & CAO/N. Rly. who, issued a consolidated cheque in favour of

STC Mess Management Committee. It was also stated that the mess workers were

privately engaged from the market on payment basis and they were paid for their

working days only.

2. The Tribunal, by the impugned order dated 21.09.2010 observed that mere

recognition of a canteen in a railway cannot brand it as private. It was noted that

Signaling and Telecommunication Training Centre had provided the space,

facilities like water, electricity, etc. for the canteen and the mess/canteen was not

run by a contractor. It was further noted that the Managing Committee headed by

the Principal and the majority of the members were from the Railway

Administration. The Tribunal noted the contention of the learned counsel for the

respondents that the mess/canteen was managed by a batch of trainees who come

periodically for training, but, felt that the role of the trainees would be with regard

to the type of menu for breakfast, lunch and dinner. The Tribunal observed that the

only hitch seemed to be that the mess/canteen had not been recognized by General

Manager of the Northern Railways. The Tribunal was also of the view that the

non-recognition of the canteen would not deprive the mess/canteen to be known as

non-statutory canteen and, therefore, Signaling and Telecommunication Training

Centre was a non-statutory non-recognized mess/canteen.

On the issue of regularization, the Tribunal was of the view that long period

of work alone cannot be the basis for regularization of railway employees. It was

noted that there is no rule in Railways as to how non-statutory non-recognized

mess/canteen employees are to be treated. Relying upon the Secretary, State of

Karnataka v. Umadevi and Ors. 2006(4) SCC 1, the Tribunal held that the

applicants were not entitled to be termed as railway employees. The Tribunal,

however, directed the respondents to examine and decide the issue of recognition

of the canteen as a non-statutory recognized canteen within four months from the

date of the order.

Admittedly, the respondents, on consideration of the matter pursuant to the

order passed by the Tribunal, informed the petitioners vide letter dated 04.03.2011

that they cannot be equated with a non-statutory recognized or un-recognized

canteen and cannot be treated as railway employees. This had also been confirmed

by the Railway Board vide letter dated 04.02.2011.

It has also been stated in the counter-affidavit to the writ petition that

pursuant to a decision taken by the Mess Management Committee in its meeting

held on 25.05.2011, the mess has already been closed on 26.05.2011 and all the

mess workers have left the mess on the same day.

3. The first question which comes up for consideration in this petitioner is as to

whether the employees of the mess which was being run at Signaling and

Telecommunication Training Centre, Ghaziabad are railway employees or not.

4. In M.M.R. Khan & others v. Union of India & Ors. 1990 (Supp) SCC 191,

Supreme Court classified the canteens run by railway establishment into three

categories, viz. (i) Statutory Canteens--these are canteens required to be provided

compulsorily in view of the provisions of Section 46 of the Factories Act, 1948

(hereinafter referred to as the Act) since the Act admittedly applies to the

establishments concerned and the employees working in the said establishments

exceed 250; (ii) Non-Statutory Recognized Canteens--these canteens are run in the

establishments which may or may not be governed by the Act but which admittedly

employ 250 or less than 250 employees, and hence, it is not obligatory on the

railways to maintain them. However, they have been set up as a staff-welfare

measure where the employees exceed 100 in number. These canteens are

established with the prior approval and recognition of the Railway Board as per the

procedure detailed in the Railway Establishment Manual; and (iii) Non-Statutory

Non-Recognized Canteens--these canteens are run at establishments in category

(ii) above but employ 100 or less than 100 employees, and are established without

the prior approval or recognition of the Railway Board. It was noted that the

statutory canteens are established wherever the railway establishments employ

more than 250 persons as is mandatory under the provisions of Section 46 of the

Act while non-statutory canteens are required to be established under paragraph

2831 of the Railway Establishment Manual where the strength of the staff is 100 or

more. With respect to non-statutory canteens, the Supreme Court observed as

under:-

"the non-statutory canteens to be recognized have to be approved of by the Railway Board in advance. Every Rly. Administration seeking to set up such canteens is required to approach the Railway Board for their prior approval/recognition indicating financial implications involved duly vetted by the Financial Advisor and Chief Accounts Officer of the Railway concerned. It is only when the approval is accorded by the Railway Board that the canteen is treated as a recognized non-statutory canteen. By the sanction, the details in regard to the number of staff to be employed in the canteen, recurring and non-recurring expenditure etc. are regulated. The only material difference between the statutory canteen and non-statutory recognized canteen is that while one is obligatory under the said Act the other is not."

Supreme Court was of the view that a classification made between the

employees of statutory canteens and non-statutory recognized canteens would be

unreasonable and will have no rational nexus with the purpose of classification.

The Court directed that the cases of the employees of non-statutory recognized

canteens should be treated at par with that of the employees of the statutory

canteens and they should also be treated as railway servants for all purposes.

With respect to non-statutory non recognized canteens, Supreme Court, inter

alia, held as under:-

"The difference between the non-statutory recognized and non-statutory non-recognized canteen is that these canteens are not started with the approval of the Railway Board as required under paragraph 2831 of the Railway Establishment Manual. Though, they are started in the premises belonging to the Railways they are so started with the permission of the local officers. They are not required to be managed either as per the provisions of the Railway Establishment Manual or the Administrative Instructions (supra). There is no obligation on the Railway Administration to provide them with any facilities including the furniture, utensils, electricity and water. These canteens are further not entitled to nor are they given any subsidies or loans. They are run by private contractors and there is no continuity either of the contractors or the workers engaged by them. More often than not the workers go out with the contractors. There is further no obligation cast even on the local offices to supervise the working of these canteens. No rules whatsoever are applicable to the recruitment of the workers and their service conditions. The canteens are run more or less on ad hoc basis, the Railway Administration having no control on their working

neither is there a record of these canteens or of the contractors who run them who keep on changing, much less of the workers engaged in these canteens. In the circumstances we are of the view of that the workers engaged in these canteens are not entitled to claim the status of the railway servants."

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

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 14.02.2011, no new departmental

canteens are to be opened nor existing non-recognized canteens are to be

departmentalized.

6. In Management of Reserve Bank of India v. Their Workmen 1996 III AD

(SC)24, the employees engaged in various catering establishments of Reserve Bank

of India claimed to be the workmen of the RBI and sought regularization. In that

case, the bank had been providing canteen facilities to its employees though there

was no statutory or other obligation for the bank to run the canteen. It was being

done as a welfare measure. The bank was bearing by way of subsidy to the extent

of 95% of the costs incurred by the canteens for payment of salary, provident fund

contribution, gratuity, uniform etc., and was also providing premises, fixtures,

utensils, furniture, electricity, water etc., free of charges. The canteens were run

either by Implementation Committee or by Cooperative Societies or by contractors.

It was contended on behalf of the employees that the bank was under a statutory

obligation to provide canteen facility to its employees and this was being done

through the Implementation Committees, Co-operative Societies and Contractors

instead of the bank doing it on its own, by employing persons directly. It was also

contended by them that the entire economic control was with the bank. On behalf

of the bank, it was contended that its management was not responsible for

employment of persons in the canteen who were employed by the Implementation

Committee, Cooperative Societies or the Contractor and it was not supervising or

controlling the working of the canteens. It was further submitted by the bank that

the employees were under no obligation to purchase the eatables from the canteen

and there was no relationship of master and servant between the bank and the

persons employed in the canteen, the staff canteen having been established only as

a welfare measure. The Court was of the view that the case before it was not

covered within the ratio laid down in M.M.R. Khan (supra). It was held that in the

absence of any statutory or other legal obligation and in the absence of any right in

the bank to supervise and control the work of the canteen workers, it cannot be said

that relationship of master and servant existed between the bank and the various

persons employed in the canteens. The Court found the demand for regularization

to be unsustainable.

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 by Supreme Court in M.M.R. Khan (supra) and consequently

they cannot seek regularization in the service of Indian Railways.

8. In Civil Appeal No. 1197/2007, Union of India v. Ram Singh Thakur &

Ors., 2011 (7) SCALE which was a case of the persons working in a mess run by a

trainee officers in a railway staff college, the Supreme Court, inter alia, held as

under:-

"It appears that the Respondents were working in a Mess run by the trainee officers in the Railway Staff College. That Mess was not run by the railways but was run by the trainee officers themselves so that they could get proper meals. It is evident that the Respondents were not railway employees, but a direction has been given that they be regularised in railway service.

In our opinion, a direction regarding regularisation in service is a purely executive function and such a direction cannot validly be given by the judiciary."

In view of the above-referred decision, it cannot be disputed that the persons

working in a mess run by trainee officers cannot be said to be a mess run by the

Railways. The persons working therein cannot be said to be railway employees

and no direction can be given for their regularization in the service of Indian

Railways.

For the reasons stated hereinabove, we find no merit in the writ petition and

the same is hereby dismissed, without any order as to costs.

V.K.JAIN, J

BADAR DURREZ AHMED, J

MARCH 30, 2012 BG