50% of Commission Bearers' pre-absorption service counts as qualifying for railway pensionary benefits per Rule 24.

ORDER

Justice K.Haripal, Judicial Member

Applicant was a Helper retired from the Trivandrum Division of Southern Railway. He had started service as a Commission Bearer on 03.10.1977 after making a security deposit of Rs.150/-. Later, he was made a Salaried Commission Bearer on 27.03.1989 and was absorbed in service on 29.07.1989. He retired from service on 31.05.2013 as Helper Grade-I. He claims parity with the applicant in O.A.440/2003, order of the Tribunal dated 24.02.2006 was confirmed by the Hon’ble High Court in WP(C) 15756/2006, Annexure-A14, and submits that he is entitled to reckon 50% of the period of service between 03.10.1977 and 28.07.1989, for grant of pension and other terminal benefits. Even though he had made representation, that has not been considered and thus approached the Tribunal for a declaration that 50% of services from the date of his entry as Commission Bearer until absorption as Bearer/Server from 03.10.1977 to 28.07.1989 shall be reckoned for all service benefits including pensionary benefits and arrears thereto, to direct the respondents to calculate and disburse all service benefits accruing to the applicant including pensionary benefits in accordance with the first prayer.

2. On behalf of the respondents, the 2^nd respondent filed a reply repudiating the contentions of the applicant. According to them, the details of the service reportedly rendered by the applicant from 03.10.1977 are not available with them since retention period of records is only five years. According to them, the applicant had commenced service as a Commission Bearer/Vendor under an agreement in the form of Annexure-R1(A), which is a commercial contract and not an employment contract. Therefore, he is not entitled to reckon the services allegedly rendered from that period, that is from 03.10.1977 to 28.07.1989.

3. It is admitted that the applicant was absorbed in terms of the decision of the Hon’ble Supreme Court in T.I.Madhavan and others v. Union of India and others [1988 Suppl. SCC 437]. Similarly, referring to Annexure-R1(C) order of the Hon’ble Supreme Court in Union of India and others v. K.V.Baby and others [(1998) 9 SCC 252] they say that the applicant cannot claim any such relief. It is also pointed out with reference to Annexure-R1(E) that on a similar claim, relying on the Annexure-R1(C) decision in K.V.Baby, quoted supra, this Tribunal had declined relief in favour of a person who was similarly placed. Referring to Annexure-R1(D), respondents have stated that the Chairman of the Railway Board, by his order dated 19.12.2003, had declined such a relief. So, according to them, the reliefs claimed by the applicant are not sustainable.

4. Further it is submitted that the Commission Bearers who were absorbed in the Railway Catering Service are entitled to get salary only from the date of their absorption and not prior to that. They were engaged on the basis of individual contract to work on commission basis, by the very nature of the engagement they cannot equate with regular employees who are doing similar works. Their appointment, mode of selection, qualification etc. cannot be compared with the regular employees, Recruitment Rules and service conditions of Southern Railway do not apply to such employees. Since they were not regular employees in the cadre of Railway Catering Service, they are not subject to the disciplinary jurisdiction of the Railway authorities under relevant rules. Their responsibilities cannot be equated with the responsibilities of regular employees. Employees who were engaged on contract basis are no