1. As the matter dealt with in O.A. Nos. 1098 and 1106 to 1120/2001 and 19 and 35 to 41/2002 are similar in nature, these O.As. are disposed of by a common order.
2. In O.A. Nos. 1098 and 1106 to 1120/2001, the 16 applicants in the said O.A. have sought for the quashing of the notification dated 29.8.2000 issued by the second respondent and the orders dated 28.8.2000, 31.8.2000 and 4.9.2000 at Annexures A-3, A-4, A-10, A-12, A-14, A-16, A-18, A-20, A-21, A-22, A-24, A-25, A-27, A-29, A-30 and A-31 passed by the second respondent and to direct the respondents to continue the applicants and to regularise their services. In O.As. 19 and 35 to 31/2002, the applicants have sought for the quashing of the order dated 14.12.2001 (Annexure A-3) therein issued by the second respondent and for issue of a direction to the respondents to regularise the services of the applicants as regular employees of the department and for all the consequential benefits.
3. The applicants in all these applications are Halt Agents. The applicants in O.A. 1098 and 1106 to 1120/2001, numbering 16 were appointed as Halt Agents as under: Si. No. Name of Halt Agents Dated of Appointment as Halt Agents The applicants in O.As 19 and 35 to 41/2002 numbering 8 were appointed as under: Si. No. Name of Halt Agents Dated of Appointment as Halt Agents According to the applicants some of them were appointed without any tenure and some of them were appointed for a period of 5 years and the same was renewed from time to time. It is the contention of the applicants that as Halt Agents, they are discharging duties of permanent and perennial nature and work done by them is of permanent nature similar to the permanent duties of the department itself.
Further, though they have been appointed as Halt Agents, there is a master and servant relationship and hence they are employees of the respondents. When this was the position, the third respondent had issued a notification dated 29.8.2000 calling upon desirous persons for appointment as Halt Agents in nearly 38 Halt Stations. The applicants contend that the said notification is illegal because the applicants are already working as Halt Agents in these stations. Further, the applicants have been served with notices purporting to be an order of termination of their appointment as Halt Agents as per Annexures A-3, A-4, A-10, A-12, A-14, A-16, A-18, A-20, A-21, A-22, A-24, A-25, A-27, A-29, A-30 and A-31 by respondent No. 2. The applicants have not been served with any notice calling upon them to show cause as to why they should not be removed from the services of Halt Agents before the termination order was passed. II is contended that the action of the respondents is arbitrary as some of the applicants were appointed decades ago and the termination would amount to hire and fire policy and hence would be an arbitrary act. Accordingly aggrieved, the applicants have filed these O.As.
4. The respondents have filed their reply in which they have taken the objection that these applications do not fall under the jurisdiction of this Tribunal in as much as the applicants are only contractors and not employees working under the control of the Railway administration.
6. According to the applicants, the applicants were appointed in stations where there is no signalling facility nor is there a second track to facilitate crossing of trains and these stations are called flag stations. As Halt Agents, they are required to work throughout the day, issue tickets to passengers who are required to travel in the trains from the Halt Stations, to receive the tickets from the passengers who alight at the stations. The applicants are also required to maintain the station and to keep it clean and to provide water to the passengers and also to work as signal man by showing signal to the trains. Further, they are also required to maintain a register for the sale of tickets which is subject to check by Commercial Inspector every month and they are also required to collect the tickets from the passengers alighting and after bunching the same, return it to the Commercial Inspector. All these duties are of permanent and perennial nature and is part of the day to day work of the respondents and similar to that being carried out by the permanent staff of the department. The Halt Agents are paid commission on the sale of tickets and in the event there is no sale or less sale of tickets, the respondents are paying Rs. 500 per month apart from the commission and the respondents are also paying Rs. 500 to the applicants when the respondents have stopped train service on that route. As such, though they were appointed as Halt Agents, there is a master and servant relationship between them and hence they are all employees of the respondents. Many of the applicants as Halt Agents are continued for a few decades. It is, therefore, the further contention of the applicants that when they were continued on work of perennial nature appointment of the applicants on contract basis is a clear case of exploitation and is a violation of Article 23 of the Constitution and also a case of unfair labour practice. It has also been contended that the Supreme Court has held that where there is a control of the employees with the work of the applicants and as such the relationship of master and servant exists. Since the applicant's work is controlled by the respondents, such a master and servant relationship exists and under the circumstances, the applicants are entitled to be regularised. The Counsel for the applicants in support has relied on the orders passed by the Supreme Court in the case of T.I. Madhavanv. Union of India and Ors., JT 1987(3) SC 650, and Union of India and Ors. v. K.V. Baby and Anr., 1999(1) LLJ 168. In the case of T.I. Madhdvan v. Union of India, the Supreme Court had directed that all the persons working as commission bearers and vendors of various Railway platforms belonging to the Central Railway and the South Central Railway should be absorbed progressively as members of the permanent Railway Catering Service and this had been reiterated in the order passed in the case of Union of India and Ors. v. K.V. Baby and Anr. It was contended by the Counsel for the applicants that as Halt Agents are working on the basis of individual contracts on commission basis, they were entitled to be continued and absorbed as regular employees in terms of the decision of the Supreme Court and hence the notification dated 29.8.2000 and the various termination orders as well as the order dated 14.12.2001 require to be quashed.
7. The respondents have, however, contended that a Halt Agent is not a Railway servant within the meaning of Railway servant as defined in the Indian Railways Establishment Code (IREC) Vol. I. Further, they are also not contract labourers. The applicants have also not been appointed by the respondents but are only agents with whom agreements have been entered into for undertaking certain work on commission basis. There are no recruitment rules applicable and there is no upper age limit fixed and the working conditions are different and the Halt Agents have been appointed at stations where it has been found to be financially unviable to deploy regular staff. In the circumstances, by no stretch of imagination can the Halt Agents be said to be holding civil posts. They have also denied that the Halt Agents perform the function of giving signals etc. It has also been pointed out by the Counsel for the respondents that the Halt Agents are being paid a commission and not a salary and the Halt Agent can engage any person as his employee for any purposes and hence Halt Agents are only contractors and not Railway servants. The Halt Agents are appointed on the basis of specific agreements and they are governed by the terms spelt out in the said agreements and there are no service conditions prescribed and there is no uniform mode of selection and their appointments were made as per the guidelines issued dated 17.5.99.
Further, the Halt Agents take care of the entire station in respect of sending and collecting tickets throughout the day which is not so in respect of a Railway servant whose service conditions are governed under the Indian Railways Establishment Code/Hours of Employment Regulation under Railways Act, 1989 (Chapter XIV). It is also their contention that the duties of the Halt Agents cannot be compared with the duties of a regular commercial clerk in the Railway Administration.
The respondents, accordingly deny that there is a master and servant relationship between the respondents and the applicants and in support they have also referred to the Supreme Court judgment in the case of Union of India and Ors. and K. V. Baby and Anr. referred to earlier in support of their stand. As regards the judgment of Supreme Court in the case of T.I. Madhavan v. Union of India and Ors., the respondents have pointed out that this judgment has to be viewed in the light of the background of the case pertaining to bearers and vendors working on various platforms on commission basis. They have stated that in respect of bearers and vendors working on commission basis, a policy decision had been taken as early as December 13, 1976 by the Railway Board to absorb them in the permanent cadre against permanent vacancies of bearers and vendors for various department catering units. In the case of the applicants, no such policy decision exists and hence they cannot either be treated as Railway employees or be considered for absorption as Railway employees.
8. The Counsel for the applicants in further response argued that even though there is no policy decision by the respondents to treat/absorb the applicants into the permanent cadre, an injustice has been done to the applicants and in the circumstances, it was open to this Tribunal to direct the respondents to consider the case of the applicants and to direct to furnish a report. It was also argued that the termination of the applicants amounted to unfair labour practice. In this context, the Counsel for the applicants referred to the orders passed by the Supreme Court in the case of Indian Bank Association v. Workmen of Syndicate Bank and Ors., AIR 2001 SC 946, and contended that the Apex Court had held that there is a clear relationship of master and servant between the deposit collectors and the concerned Bank and though the deposit collectors were not in regular employment but only received commissions had held that the commission amount received by the deposit collectors amount to 'wage' linked productivity and deposit collectors of Bank are therefore 'workmen' within the meaning of Industrial Dispute Act.
9. We have carefully considered the rival submissions made before the Bar. It is seen that in the case of bearers and vendors working on commission basis on Railway platforms, a policy decision had been taken in the respondents vide letter dated 13.12.1976 and it was in the light of this policy decision that the Supreme Court in the case of T.I.Madhavan v. Union of India and Ors. directed that bearers and vendors on commission basis working on the Railway platforms should be absorbed progressively as members of permanent Railway catering service. In the case of the applicants, no such policy decision has been taken at the highest level. In the case of Union of India and Ors. v. K. V. Baby and Anr., the Supreme Court had observed that the bearers and vendors were appointed on the basis of individual contracts to work on a commission basis, their mode of selection and qualification could not be compared with regular employees and the recruitment rules service conditions of regular employees did not apply to them. The facts and circumstances in the case of Indian Bank Association v. The Workmen of Syndicate Bank and Ors. are different and even in that case the Supreme Court had held that the work which the deposit collectors do is completely different from the work which the regular employees do and hence there is no question of the deposit collectors being absorbed or being paid the same pay and allowances and other service conditions of the regular employees of the Bank. In the circumstances, none of the judgments cited by the Counsel for the applicants is of any help in support of the claim of the applicants. Further, as pointed out by the respondents, the applicants are not paid any salary but only a commission and they have not been recruited under any recruitment rules and no service conditions are prescribed. They can engage any person as their employees for doing any part of the work and that they are only contractors and they do not come within the definition of Railway Servants in terms of IREC Vol. I, 5th edition, Para 43. The contention of the Counsel for the applicants that it was open to this Tribunal to direct the respondents to consider the case of the applicants and submit a report is untenable as such a step could only be taken by this Tribunal were we to have jurisdiction in the matter. In the facts and circumstances of the case, we are of the considered view that the applicants who are Halt Agents cannot be treated as Railway servants and hence this Tribunal has no jurisdiction in respect of the applicants.
10. In view of the fact that this Tribunal has no jurisdiction in as much as the applicants are not employees of the Railway administration, the O.As. are not maintainable. Accordingly, the O.As. are dismissed as not maintainable. No costs.