The Tribunal affirmed the right of applicants to count 50% of their prior service as Commission Bearers towards pensionary benefits, grounding its decision on established precedents.

ORDER

Justice K.Haripal, Judicial Member

Since common questions were raised, all these Original Applications were clubbed, heard together and are being disposed of by this common order. O.A.472/2022 is taken as the lead case. Reference will be made about the documents produced in that case.

2. All the applicants were initially engaged in the Southern Railway as Commission Bearers by making security deposit of Rs.250/-. Thereafter, it is submitted, on the basis of the order of this Tribunal in O.A.368/1992 they were made to work as Salaried Commission Bearers. Then all of them were regularised in the Railway absorbing them in the Electrical Branch; later they have retired from service on attaining age of superannuation.

3. The common grievance of the applicants is that though they commenced their engagement as Commission Bearers and continued as Salaried Commission Bearers, for the grant of retiral benefits and pension, period of service from the dates of regularisation alone was reckoned, which is illegal. This Tribunal, in numerous cases, based on authorities, have directed to reckon half of the service rendered by them as Commission/Salaried Bearers before regular absorption for the purpose of pension and other terminal benefits. That benefit has not been extended to the applicant. Therefore, all the applicants, except the applicant in O.A.945/2019, seek a declaration that 50% of service rendered by them as Commission Bearers till the date of absorption is liable to be reckoned for all service benefits including pensionary benefits, MACP and arrears. In the case of O.A.945/2019 the applicant has sought to reckon 100% of the period of his service from 28.07.1976, the date on which he was initially engaged as Commission Bearer till 13.03.1986, when he was absorbed as Server/Waiter by the Railways.

4. The applicants have relied on Annexure-A6 order of this Tribunal in O.A.440/2003 dated 24.02.2006, which has been confirmed by the Hon'ble High Court in Annexure-A7 judgment in WP(C)15756/2006 and other orders as well.

5. Respondents have disputed the contentions. According to them, the applicants were engaged as Commission Vendors in terms of Annexure- R1(A) agreement. They were later absorbed in Group-D posts as directed by the Hon'ble Supreme Court in T.I. Madhavan and others v. Union of India and others [ 1988 Supp SCC 437 ] dated 08.09.1987 by which order such persons who were absorbed shall be entitled to get salary from the respective dates of absorption. Referring to the decision in Union of India and others v. K.V. Baby and others [ (1998) 9 SCC 252 ] it is submitted that though such Commission Bearers and Vendors on Railway platforms were decided to be absorbed, persons who were engaged on the basis of individual contracts cannot, by the very nature of their engagement, be equated with regular employees. According to them, Commission Bearers are not eligible for counting their period of engagement prior to absorption, that there is no statutory provision for reckoning the period of engagement for service and pensionary benefits.

6. According to them, there is clear distinction between the service rendered by a contractor under agreement/contract made in exercise of executive power of the Union under Article 299 of the Constitution and service rendered by a Railway servant under Articles 309 to 311. The earlier decisions are judgment in personnam, benefit of the same cannot extended to the applicants. Referring to Annexure-R1(E) order of this Tribunal authored by one of us, Haripal (J), the claim has been dismissed based on the decision i