Madras High Court
The Divisional Personnel Officer vs The Presiding Officer on 28 June, 2023
W.P.Nos.25043 to 25048 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
Writ Petition No.25043, 25044, 25045, 25046, 25047
and 25048 of 2013
and M.P.Nos.1,1,1,1,1 and 1 of 2013 and
M.P.Nos.2,2,2,2,2 and 2 of 2013
The Divisional Personnel Officer
Chennai Division, Southern Railway
Park Town, Chennai – 600 003. …. Petitioner in all W.Ps.
-Vs-
1.The Presiding Officer
The Central Government Industrial
Tribunal-cum-Labour Court, Chennai. …. R1 in all W.Ps.
2.C.Porchezian (Died)
3.P.Santhi
4.P.Ajith Kumar
(Respondents 3 and 4 impleaded as
legal heirs of the deceased 2nd
respondent vide order dated 28.06.2023
made in W.M.P.No.17655/2023 by VLNJ) ... Respondents 2, 3 and 4 in
W.P.No.25043 of 2013
W.P.Nos.25044 to 25048 of 2013
2. M.Jaisankar ... R2 in W.P.No.25044/2013
N.Selvan ... R2 in W.P.No.25045/2013
S.Mohanraj ... R3 in W.P.No.25046/2013
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S.Murali ... R2 in W.P.No.25047/2013
E.Sridhar ... R2 in W.P.No.25048/2013
Common Prayer : Writ Petition under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorari calling for the entire records of
the 1st respondent in I.D.Nos.62 to 67 of 2011 including the award dated
31.05.2012 and quash the same.
In all W.Ps.
For Petitioner : Mr.Vijay Anand
For Respondents : R1 – Court
Mr.K.M.Ramesh, Senior Counsel
for Mr.K.Bharathi – for R3 & R4
in WP Nos.25043 of 2013
for R2 in all the other W.Ps.
COMMON ORDER
This batch of writ petitions challenge the award of the Central
Government Industrial Tribunal (CGIT) in I.D.Nos.62 to 67 of 2011 dated
31.05.2012. For the sake of convenience, the parties are referred to as
Management and Workmen.
2. The Management is the Divisional Personnel Officer, Southern Railways
and the workmen are those who were working in the Canteens running at Basin
Bridge Yard. The workmen have been working for more than three decades. It
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W.P.Nos.25043 to 25048 of 2013
is an admitted case that Mr.C.Porchezian, petitioner in I.D.No.63 of 2011 was
working from 1989 and Mr.Selvan, the petitioner in I.D.No.65 of 2011 was
working from 1987. The remaining have also worked, as pointed out above, for
more than two decades.
3. The Basin Bridge Yard Canteen caters to the needs of the Railway
servants of about 1500 persons. As per Section 46 of the Factories Act, if a
canteen is being run for more than 250 employees, it is statutory in nature and
for workmen less than 250, while it is non-statutory, it is treated as non-
recognised canteen. The difference being that, one is being run as per the
Statute and one as per the Railway Manual 2831. In and about 1991, a circular
had been issued by the Railway Board in E(W)/91/CN/Mass Circular dated
29.11.1991, which stated that the canteens which are non-statutory but
recognised, require prior approval of the Railway Board.
4. Mr.Vijay Anand, learned counsel appearing for the Management would
argue that the workmen have not produced any evidence to show that the said
canteen was being run after recognition from the Railway Board.
5. Mr.K.M.Ramesh, learned Senior Counsel appearing for the respondent
workmen would submit that a perusal of Ex.W15 shows that the fixation of
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W.P.Nos.25043 to 25048 of 2013
wages was by the advisory committee which consists members of only Southern
Railways. Apart from that, it was pointed out that from Ex.M4, the advisory
committee was kept updated about the financial implications of running a
canteen.
6. Since there was a dispute as regards their rights, the petitioners moved
the Central Government which referred the matter for adjudication.
COMMON AWARD
The Central Government, Ministry of Labour and
Employment vide the above order of references referred the IDs
mentioned above to this Tribunal for adjudication:
I.D.62/2011
“Whether the demand of the workman Sri E.Sridhar for regular
employment in the Basic Bridge Yard Railway Canteen which is a
statutory canteen of Southern Railway is legal and justified? To
what relief the workman is entitled?
I.D.63/2011
“Whether the demand of the workman Sri C.Porchezian for regular
employment in the Basic Bridge Yard Railway Canteen which is a
statutory canteen of Southern Railway is legal and justified? To
what relief the workman is entitled?
I.D.64/2011
“Whether the demand of the workman Sri S.Jaisankar for regular
employment in the Basic Bridge Yard Railway Canteen which is a
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W.P.Nos.25043 to 25048 of 2013
statutory canteen of Southern Railway is legal and justified? To
what relief the workman is entitled?
I.D.65/2011
“Whether the demand of the workman Sri N.Selvan for regular
employment in the Basic Bridge Yard Railway Canteen which is a
statutory canteen of Southern Railway is legal and justified? To
what relief the workman is entitled?
I.D.66/2011
“Whether the demand of the workman Sri S.Murali for regular
employment in the Basic Bridge Yard Railway Canteen which is a
statutory canteen of Southern Railway is legal and justified? To
what relief the workman is entitled?
I.D.67/2011
“Whether the demand of the workman Sri S.Mohan Raj for regular
employment in the Basic Bridge Yard Railway Canteen which is a
statutory canteen of Southern Railway is legal and justified? To
what relief the workman is entitled?
7. On behalf of the petitioners they examined one S.Mohanraj as W.W.1.
Mr.T.R.Mukunthan was examined as M.W.1. On the workmens' side, they marked
photo identity card issued by the Railways as well as the proceedings of the
Senior DPO absorbing the substitutes as Railway servants. The Management
mainly relied upon the Railway Board Circulars and would take a stand that the
Railway Board was not aware that a canteen was being run from 1987 till the
time the dispute was raised in 2007.
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8. A perusal of W.15 would show that the advisory committee had
enhanced the price of consuming items. This makes one draw a conclusion that
without the knowledge of the persons in the capacity as the writ petitioners, the
said canteen could not have been run. I further have to point out that the
committee members being senior officers of the Railway Board, it is unbelievable
that the entire canteen was being run without the knowledge of the petitioners
or of the Railway Board.
9. The persons similarly situated had taken up the matter before the
Supreme Court as early as 1990 and in MMR Khan and Others -vs- Union of
India and Others reported in (1990) 2 LLN 197, the Supreme Court was
pleased to grant the benefits to persons who were working in statutory
recognised canteens and non-statutory recognised canteens, but only denied the
benefit to persons who were working in non-statutory non-recognised canteens.
This is clear from a perusal of the judgment in MMR Khan and Others -vs-
Union of India and Others, in particular Para 36 of the said judgment.
10. In order to torpedo the case of the writ petitioners, Mr.Vijay Anand
would bring to my attention the judgment of the Supreme Court in Sri Krishan
and Others -vs- Union of India and Others reported in (2014) 10
S.C.C.415. This judgment did not hold me for a fraction of moment for the
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simple reason that the petitioners in the said case were working in non-statutory
non-recognised canteens. They cannot be treated on par with those working in
non-statutory recognised canteens. This subtle distinction has already been
explained in the case of MMR Khan and Others -vs- Union of India and
Others and therefore, the judgment in Sri Krishan and Others -vs- Union
of India and Others does not apply to the facts of the present case.
11. It is here the judgment in Parimal Chandra Raha and Others -vs-
Life Insurance Corporation of India and Others reported in 1995 Supp
(2) S.C.C.611 becomes relevant. In the said judgment, the Supreme Court, as
in the case of Sri Krishan's case, has held if the canteen is being run under the
control of an agency of the Railway Administration, it matters not whether the
agency concerned is a staff committee or a society. The court went on to hold
that as per the Establishment Manual of the Indian Railways, the ultimate
responsibility was with that of the Railway Administration.
12. In this particular case, it is not in dispute that the the Chairman of the
Canteen Committee was the Additional Divisional Mechanical Engineer (ADME)
in-charge of the Basin Bridge Yard. This shows that the advisory committee
which was formed by the Railways was playing an active role in the running of
the canteen.
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13. The findings of the Central Government Industrial Tribunal (CGIT) is
also to the effect that the enhancement of wages was with the tacit approval of
the Railway Administration. It also come to the conclusion that if the Railway
Committee was to exceed the powers conferred on it, the Railway Administration
would have swung into action and taken immediate steps to rectify the situation.
This is a finding of fact and therefore, I am not empowered under Article 226 to
interfere with the same unless and until it has been shown to be so perverse that
it has to be interfered with. The said logic does not apply to the facts of the
present case.
14. The CGIT also found that there is a relationship of employer-employee
between the members of the non-statutory recognised canteen being run at the
Basin Bridge Yard and the Railway Administration. A perusal of the pleadings as
well as the documents also would lead to the said conclusion. Therefore, I am
unable to accept the argument of Mr.Vijay Anand, learned counsel for the
Management that the Management had no role in the appointment or day-to-day
running of the canteen.
15. I agree with the findings of the CGIT that the petitioners commenced
their services with the non-statutory non-recognised canteen by the Railway
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Administration. I have to point out that it is not in dispute that Mr.Selvan was
working from 1987 and Porchezian was working from 1989. To say that a person
who has been issued an identity card and who was reporting to duty almost
every day was not within the knowledge of the Railway Administration begs the
very issue.
16. The appointments made by the management committee cannot be
termed as illegal because, during the relevant time it was entitled to make the
appointments. The Master Circular came into force after 1989, to say, in 1991,
and obviously it cannot be given retrospective effect. This is more so when the
Railway Administration has not disputed the fact that the workmen were
regularly working in the canteen.
17. All these aspects have been analysed threadbare by the CGIT. It has
appreciated the law in a proper perspective and has come to a just conclusion
that persons who have given the best years of their life to the Railway
Administration should be regularised in service. As the largest employer in the
country, it is expected that the Railway Administration would comply with the
judgment of the Supreme Court in MMR Khan and Others -vs- Union of
India and Others and does not do a legal hair split. Unfortunately, they have
done so and it has come to a conclusion before the CGIT.
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18. Mr.Vijay Anand, learned counsel for the petitioner Management relied
upon the case of Secretary, State of Karnataka and Others -vs- Umadevi
and Others reported in (2006) 4 SCC 1 to state that there is no question of
regularisation and that has been frowned upon by the Supreme Court.
Umadevi's case applies to different circumstances. Insofar as the Railway
Administration is concerned, the judgment that should be made applicable is the
case of MMR Khan and Others -vs- Union of India and Others reported in
(1990) 2 LLN 197 and that judgment has been property applied by the CGIT.
When there is a direct judgment on the point, I need not search or labour by
applying the judgment of Umadevi's case which arose under totally different
circumstances.
19. I do not find any illegality or irregularity or perversity in the order.
Under such circumstances, the scope for interference is very limited. Therefore,
the writ petitions are dismissed. No costs. Consequently, connected
miscellaneous petitions are also dismissed.
28.06.2023
Index : Yes/No
Neutral Citation : Yes/No
Speaking Order / Non-speaking order
KST
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To
The Presiding Officer
The Central Government Industrial
Tribunal-cum-Labour Court, Chennai.
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W.P.Nos.25043 to 25048 of 2013
V. LAKSHMINARAYANAN, J.
KST
W.P.Nos25043 to 25048 of 2013
28.06.2023
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