1. This Original Application has been filed by two retired Servers in the Catering Department of Southern Railway who were appointed on regular basis while they were working as Commission Bearers in pursuance of the order dated 8.9.1987 of the Hon'ble Supreme Court in T.I. Madhavan and Ors. v. Union of India and Ors. in WP No. 191/1986. During the pendency of this OA the applicant No. 1 died and his wife - the legal representative was substituted as applicant No.1.
2. The pleadings in this OA narrates the details of the 1 st applicant's engagement with the Railways as Substitute Bearer, Substitute Pointsman and Substitute Gangman during different broken spells starting from 15 th January, 1962 to 23.10.1972. Shorn of all the details of such sporadic engagements under the Railway, as matters pertinent to this OA, pleadings of the applicants state that applicant Nos.1 and 2 were working as Commission Bearers on contract basis from 23.3.1973 till 18.10.1979 and from 21.12.1972 to 14.4.1979 respectively. According to applicants as per the practice prevailing at that time the Commission Workers were reckoned to have been working from the date on which they made cash deposits in favour of the Railway. Annexure A1 is the receipt for cash deposit made by applicant No. 1 and Annexure A5 is the cash receipt in respect of applicant No. 2.
3. According to the applicants, applicant No. 1 joined duty on regular posting as Server on 19.10.1979 in pursuance of Annexure A2 order and applicant No. 2 was absorbed as Server in the Catering Branch with effect from 15.4.1979 vide Annexure A6 order. Applicant No. 1 took voluntary retirement on 30.9.2001 and applicant No. 2 retired on superannuation on 31.1.2003.
4. They have approached this Tribunal seeking the benefit of Annexure A8 order passed by this Tribunal wherein half the period of service rendered as Commission Bearers from initial engagement to regular absorption have been taken in to account for calculation of pension and other terminal benefits. Annexure A8 common order was passed by this Tribunal in OA No. 417/2013 and connected cases on 4.6.2014. In Annexure A8 common order this Tribunal relied on an earlier decision of a Division Bench of this Tribunal in OA No. 440/2003 and a subsequent decision in OA No. 311/2010 also.
5. Respondents filed reply statement contending that by virtue of T.I. Madhavan's case (supra) the applicants are entitled to claim the benefits only from the date of regularisation and they cannot claim themselves as Railway servant during the period prior to their regular absorption. According to the respondents the Commission Bearers executed agreements for engagement as Commission Bearers/Vendors in Annexure R1 format and they were paid commissions for selling food items. Subsequently this system was modified with effect from 1.12.1983 by paying monthly salaries to the Commission Bearers/Vendors as per orders of the Apex Court. Thereafter in terms of the order of the Apex Court in T.I. Madhavan's case (supra) they were absorbed in Group-D post against the vacancy based on their educational qualifications and medical fitness. According to the respondents prior to the order in T.I. Madhavan's case (supra) respondents had no obligation for absorbing the Commission Vendors/Bearers in the Railway service.
6. According to the respondents the Annexure A8 common order was challenged before the Hon'ble High Court of Kerala in OP (CAT) Nos. 144/2014 and connected cases. On dismissal of the aforesaid OP (CAT)s Special Leave Petition No. CC 17696 to 17699 of 2015 were filed but the Apex Court disposed of those cases on 4.12.2015 with direction to file review petition before the High Court and the respondents are now in the process of filing review petition before the High Court. Therefore the respondents contend that it is not correct to reckon 50% of service as Commission Bearer as qualifying service for pension for those who were absorbed subsequently. Respondents further state that the applicants while working as Commission Bearers were paid only commission depending on the quantum of sales and they were not engaged as contract labour and it is not possible for counting the service as Commission Bearers as qualifying service for pension as the the Pension rules do not provide for reckoning such service.
7. Respondents further contend that the decision of this Tribunal in OA No. 440 of 2003 relied on in Annexure A8 common order was also under challenge before the High Court in WP No. 15756 of 2006 but the High Court has upheld the decision of this Tribunal. The SLP filed against the High Court's decision was dismissed by the Supreme Court of India in SLP (C) No. 17410 of 2010 on the ground of delay, not on merits. According to the respondents, therefore, the order in OA No. 440 of 2003 was implemented in personam for the applicant alone as per the advice communicated by the Railway Board. It is further stated by the respondents that similar orders passed by the Madras Bench of this Tribunal in OA Nos. 193/2010, 194/2010, 360/2011 and 1322/2010 were challenged before the High Court of Madras in WP No. 10422/2013 and connected writ petitions; on dismissal of those Writ Petitions by the Madras High Court the orders of the Madras Bench of this Tribunal were implemented in personam for the applicants on the basis of the Railway Board's order. Respondents pray for rejecting the OA.
8. Heard Mr. A.N. Kuttan, learned counsel appearing for the applicants and Mr. Sunil Jacob Jose, learned counsel appearing for the respondents. Perused the record.
9. As stated earlier the applicants in this case seek the benefits granted to the applicants in Annexure A8 order granting them the benefit of 50% of their service as Commission Bearers/Vendors in the Catering Department of the Railway to be reckoned for counting the qualifying service for their pension and retirement benefits. Annexure A8 order was passed on the foot steps of the earlier decision of the Division Bench of this Tribunal in OA No. 443 of 2003 which was followed in the order in OA No. 311 of 2010 also. In Annexure A8, the decision of the co-ordinate Bench in Madras in OA No. 360 of 2011 and the dismissal of the Writ Petition arising therefrom by the Madras High Court also were taken note of.
10. It appears that the respondents Railway had unsuccessfully taken up Annexure A8 decision of this Tribunal and also the decision in OA No. 440 of 2003 before the High Court of Kerala and thereafter before the Apex Court. Respondents state that the SLP filed against the orders of the High Court in relation to OA No. 440 of 2003 was dismissed on the grounds of delay and hence it was implemented in personam for the applicant alone. They state the same reason for implementation of the decision of the Madras Bench of this Tribunal that they were implemented in personam. However, in the case of Annexure A8 common order, the respondents state that in the SLP filed as CC No. 17696 to 17699 of 2015 were disposed of by the Apex Court with a direction to file review before the High Court. According to the respondents they are in the process of filing review applications.
11. Thus what this Tribunal see is that in those cases where the decisions of his Tribunal in similarly situated cases have been upheld by the superior forums respondents contend that they have implemented the order of this Tribunal only in personam and for the rest of the cases they are 'in the process of filing review petitions'. There is nothing in record to show that the respondents had actually implemented the orders, specifically mentioning that they do so, in personam in those cases. Till date nothing was brought before this Tribunal as to whether any review petition has been filed in the High Court in relation to the cases in Annexure A8 order.
12. In the aforesaid circumstances the position thus emerges is that this Tribunal is bound by Annexure A8 decision, the earlier decisions relied on in Annexure A8 order and also the decisions of the co-ordinate Bench at Madras mentioned in the reply statement. In all these cases, the issue was whether to count 50% of the period during which the applicants were working as Commission Bearers/Vendors has to be treated as qualifying service for the purpose of their pensionary benefits after their regularisation. The very same issue has been raised by the applicants in this case also.
13. Therefore, in order to maintain consistency, following the principles of stare decisis et non quieta movere (to adhere to precedents, and not to unsettle things which are established), this Tribunal is inclined to pass the same order as in Annexure A8 common order, the order in OA No. 440 of 2003 and the orders of the co-ordinate Bench in Madras mentioned in the reply statement. Respondents shall extend the same benefits to the deceased applicant No.1 (through his legal heir substituted in this OA) and applicant No.2 also and appropriate orders in this regard shall be issued by the Railway within two months from the date of receipt of a copy of this order.
14. The Original Application is disposed of as above. No order as to costs.