Shri Krishan & Ors. vs Union Of India & Ors.
2014 Latest Caselaw 2371 Del

*       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

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

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

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.

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

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

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

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.

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

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

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

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