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Union Of India And Others v. K.V Baby And Another
Factual and Procedural Background
These appeals were filed by the Union of India and Southern Railway challenging the Central Administrative Tribunal, Ernakulam Bench order dated 28-10-1993. The Tribunal held that the respondents (Commission Bearers/Vendors engaged by Southern Railway on a contract basis and paid by commission, not salary) were entitled to regularisation in accordance with law and should be treated on par with regular salaried bearers/waiters by applying the principle of “equal pay for equal work.”
The respondents’ position was stated to be similar to commission bearers/vendors working on platforms of Central Railway and South Central Railway, in respect of whom the Supreme Court in T.I Madhavan v. Union of India directed progressive absorption into the Railway Catering Service as vacancies occur, with salary payable from the date of absorption and with a direction restraining permanent recruitment from other sources until such absorption is completed. Counsel for the appellants conceded that the respondents were also entitled to absorption on the same basis, with salary payable from the date of absorption.
Legal Issues Presented
- Whether Commission Bearers/Vendors engaged on individual contracts on a commission basis are entitled, pending their absorption, to the same salary/emoluments as regular employees on the principle of “equal pay for equal work.”
Arguments of the Parties
Respondents' Contentions
- Pending absorption, they should be paid the same salary as regular employees because they perform similar work.
- The Railways allegedly exercise the same disciplinary control and power over them as over regular employees.
Appellants' Position (as reflected in the opinion)
- It was conceded that respondents are entitled to absorption as directed in T.I Madhavan v. Union of India, and that salary would be paid as regular employees from the date of absorption.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| T.I Madhavan v. Union of India, 1988 Supp SCC 437 | Contract-based commission bearers/vendors were directed to be absorbed progressively in the Railway Catering Service as vacancies occur; salary as regular employees payable from the date of absorption; restriction on permanent recruitment from other sources until absorption is completed. | Used to affirm respondents’ entitlement to absorption in the same manner and to support the conclusion that regular salary is payable only from the date of absorption (not earlier). |
| State of Haryana v. Jasmer Singh, (1996) 11 SCC 77 | Daily-rated workers were not equated with regular employees for pay parity, for reasons including differences in engagement and service conditions. | Relied upon to reject equating contract/commission-based workers with regular employees for equal pay. |
| State of Haryana v. Surinder Kumar, (1997) 3 SCC 633 | Contract-based employees were not treated on par with regular employees for salary and other benefits. | Relied upon to reinforce that contract-based engagement does not warrant parity in salary/benefits with regular employees. |
Court's Reasoning and Analysis
The Court accepted that respondents are entitled to progressive absorption into the Railway Catering Service as vacancies occur, consistent with the directions in T.I Madhavan v. Union of India, and noted the appellants’ concession on this point, including that salary would be payable from the date of absorption.
However, the Court held that, pending absorption, persons engaged through individual contracts on a commission basis cannot be equated with regular employees merely because they may perform similar work. It emphasized that the nature of engagement differs: their appointment and mode of selection, and their qualifications, cannot be compared with regular employees; the Recruitment Rules and service conditions of Southern Railways do not apply to them; and since they are not regular employees on the cadre of the Railway Catering Service, they cannot claim to be subject to disciplinary jurisdiction under the relevant Rules in the same manner as regular employees. The Court also stated that their responsibilities cannot be equated with those of regular employees.
In support, the Court referred to decisions declining parity between non-regular workers (daily-rated or contract-based) and regular employees in respect of salary and benefits. It also noted that even in T.I Madhavan, regular salary was directed to be paid only from the date of absorption. On this basis, the Tribunal’s grant of regular emoluments pending absorption was set aside.
Holding and Implications
ALLOWED: The appeals were allowed and the Tribunal’s impugned judgment was set aside.
The respondents remain entitled to progressive absorption in the Railway Catering Service in the manner directed in T.I Madhavan v. Union of India, and they will be entitled to salary as regular employees from the date of their absorption. The decision directly affects the parties by denying regular pay parity prior to absorption while preserving the right to absorption; no broader implications beyond applying the cited principles are stated in the opinion.
1. These appeals are filed by the Union of India and Southern Railway against the decision of the Central Administrative Tribunal, Ernakulam Bench, dated 28-10-1993 under which the Tribunal has held that the respondents are entitled to regularisation in accordance with law and has held that they should be treated on a par with regular salaried bearers/waiters of the appellant, applying the principle of “equal pay for equal work”.
2. The respondents are Commission Bearers/Vendors appointed on a contract basis by the Southern Railways. They are not paid any salary by the Southern Railways but are given a commission on the business transacted by them. In respect of similar Commission Bearers and Vendors working on the platforms of Central Railway and South Central Railway, this Court, in the case of T.I Madhavan v. Union of India 1988 Supp SCC 437 directed that such persons employed on contract basis should be absorbed progressively in the Railway Catering Service on a regular basis, as per paragraph 3 of the memorandum dated 13-12-1976 issued by the Joint Director, Traffic Commercial (C)II, Railway Board, as and when vacancies occur. The Court further directed that until all such persons are absorbed, the Railway Administration shall not recruit or appoint any persons to these posts on a permanent basis from any other source. The Court also directed that vendors and bearers so absorbed in the Railway Catering Service shall be entitled to salary as from the date of their absorption. The position of the respondents in the present case is similar to the vendors and bearers in the above case. It is conceded by learned counsel appearing for the appellants that these respondents are also entitled to absorption as directed by the Supreme Court in the above-mentioned case and that, as and when they are absorbed, they will be paid salary from the date of their absorption as regular employees.
3. The respondents, however, contend that pending their absorption they must be paid the same salary as regular employees, as they are doing similar work. They have also contended that the Railways have the same disciplinary control and power over them as over their regular employees. The Tribunal has accepted this contention and granted them the same emoluments as the regular employees. However, persons who are engaged on the basis of individual contracts to work on a commission basis cannot, by the very nature of their engagement, be equated with regular employees doing similar work. Their appointment and mode of selection, their qualifications cannot be compared with regular employees. The Recruitment Rules and service conditions of Southern Railways do not apply to these employees. Since they are not regular employees on the cadre of Railway Catering Service, we fail to see how they can contend that they are subject to the disciplinary jurisdiction of the Railway authorities under the relevant Rules. Their responsibilities cannot be equated with the responsibilities of regular employees. Our attention has been drawn in this connection to a decision in the case of State of Haryana v. Jasmer Singh (1996) 11 SCC 77 (to which one of us was a party), where this Court has, for reasons set out therein, declined to equate daily-rated workers with regular employees for similar reasons. In a subsequent case of State of Haryana v. Surinder Kumar (1997) 3 SCC 633 employees who were engaged on a contract basis were not considered as on a par with regular employees for the purposes of their salary and other benefits. In the case of T.I Madhavan v. Union of India 1988 Supp SCC 437 also, this Court, although it did not go into this question, directed that the salary of a regular employee can be paid to such employees only from the date of their absorption. In the premises, the appeals are allowed and the impugned judgment of the Tribunal is set aside. However, the respondents are entitled to absorption in the same manner as directed in T.I Madhavan v. Union of India 1988 Supp SCC 437 and will be entitled to salary as regular employees from the date of their absorption.
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