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TMI Blog1964 (1) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... station at Tiruchirapalli Junction. Under an agreement with the Railway Administration, he undertook to vend on the station platform and along the train side, food packets, refreshments and beverages prepared by the Administration at the vegetarian refreshment room. He was allowed for the purpose, the use of the vessels, utensils, furniture, stores, etc., belonging to the Administration and was to be paid at the end of each day twelve naye Paise per rupee on the value of edibles or beverages etc., supplied to him. The petitioner should employ his own servants for the vending, but they should possess the specified attributes and submit themselves to periodical medical examination and character investigation by the Administration. If the lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the day to day performance of the agreement. These provisions indicate that there was a great degree of control and direction by the Administration in respect of the manner in which the food packets etc. were to be sold by the petitioner to the railway passengers. Though the agreement is not clear about it, the Tribunal below has held that unsold refreshments could not be returned by the petitioner vendor to the Administration; but, on the contrary, he would be liable to the latter for their price. Clause 18(ii), however, speaks only of the vendor remitting the entire sale proceeds of the articles supplied; it has no reference to the petitioner being liable for the price himself. That, however, is not of much importance, as both the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to punish the petitioner for misconduct by imposing a fine up to a limit of Rs. 100. That is quite inconsistent with the relationship of a vendor and vendee. The Appellate Tribunal found in favour of such relationship on a curious line of reasoning and by adopting an unsatisfactory procedure. It has stated: "The suggestion that it was the railway who sold the refreshments through him (petitioner) as its servant is puerile. We have asked the State Representative to verify as to what obtained in practice. He has done so. It is seen from the letter addressed to the appellant that items of refreshments or beverages given to the appellant vendor by the refreshment room manager for sale would not be taken back if left unsold. The vendor should p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled a "commission" cannot mean that he is an agent. No discretion in the matter of execution of his duties is vested in him. The existence of a right to give direction in the performance of the duties and of a power to take disciplinary action would, in our opinion, decisively show that the petitioner was nothing more than a servant. He will not, therefore, be a "dealer ". The sale of food packets etc., to the passengers must, in the circumstances of the case, be regarded as one directly made by the Railway Administration through its servant, the petitioner, and that the latter will not be liable to be assessed to sales tax on the turnover. The order of assessment will be set aside with costs. (Counsel's fee Rs. 100). Ordered accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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