UNION OF INDIA AND OTHERS versus DYALU RAM on 11 December 2018

[2018] 14 S.C.R. 941

UNION OF INDIA AND OTHERS

v.

DYALU RAM

(Civil Appeal No. 12004 of 2018)

DECEMBER 11, 2018

[DR. DHANANJAYA Y CHANDRACHUD AND

M. R. SHAH, JJ.]

Administrative Tribunals Act, 1985: s.14 – Jurisdiction ofTribunal – Respondents engaged on casual basis by Armed Forcesin 1993 and 1994 respectively – Wages payable to them weredisbursed out of Regimental Funds – Terminated from services inthe year 2003 – Respondents challenged termination order beforeCAT – Tribunal quashed the order of termination and directed theirreinstatement on the ground that the respondents were working as‘civil cooks’ continuously since the date of their initial appointmentand they could not have been treated to be privately engaged asdaily wagers and Regimental Funds are not private funds raisedout of individual contributions made by the Army officers – HighCourt dismissed the writ petitions – On appeal, held: It was held inR.R. Pillai case that employees of Unit run canteens are not engagedby the Army authorities and do not hold a post under the UnionGovernment – Once it is held that employees of regimental canteensare neither government servants nor are they engaged in connectionwith a civil post under the Union, the Tribunal would not havejurisdiction to entertain the claim under s.14 of the Act – In view ofthis, the directions issued by the Tribunal were unsustainable – OfficeMemorandum dated 26 March 2012 of the Ministry of Defencewas wrongly relied upon by the respondents as the said Memorandumwas applicable to casual workers working in Directorates/Departments of the Ministry of Defence – Respondents were notemployed by either a Directorate or Department of the Ministry ofDefence – Order of Tribunal and the order of High Court affirmingthe same, are set aside – Service law – Armed Forces – Jurisdiction.

Allowing the appeals, the Court

HELD : Once it is held that they do not have the status of

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Agovernment servants, the order passed by the Tribunal and theorder of the High Court affirming that decision are set aside.However, the continuance of the respondent-workmen woulddepend upon the authorities at the regimental canteens. It willbe open to them to take a sympathetic view in regard to availingBtheir services having regard to the long years of work which havebeen put in by them. [Paras 12, 13][945-F-H; 946-A]

R.R. Pillai (D) Through Lrs. v. Commanding Officer,Headquarters, Southern Air Command (U) [2009 (13)SCC 311] : [2009] 7 SCR 118 – relied on.

CUnion of India v. Gobinda Prasad Mula 2012 (13) SCC565 ; Union of India versus M. Aslam 2001 (1) SCC720 : [2001] 1 SCR 62 – referred to.

Case Law Reference

D[2009] 7 SCR 118relied onPara 5(2012) 13 SCC 565referred toPara 5[2001] 1 SCR 62referred toPara 8

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 12004of 2018.E

From the Judgment and Order dated 12.03.2010 of the High Courtof Himachal Pradesh at Shimla in CWP No. 201 of 2006.

With

Civil Appeal No. 12005 of 2018.F

Kailash Vasudev, Sr. Adv., R. Balasubramanian, Mrs. SadhnaSandhu, Advs. for the Appellants.

Ashok Agarwal, Vipin Kumar Jai, Advs. for the Respondent.

The Judgment of the Court was delivered byGDR. DHANANJAYA Y CHANDRACHUD, J.

Delay condoned.

Leave granted.

H1. These appeals have arisen from a judgment dated 12 March 2010 of the High Court of Himachal Pradesh, affirming the decision ofthe Central Administrative Tribunal.

2. The Respondents were engaged in 1993 and 1994 respectivelyon casual basis by the Headquarters, Army Training Command(ARTRAC), Shimla. The wages payable to them were disbursed out ofRegimental Funds. They were terminated from service with effect from1 September 2003. The respondents moved the Central AdministrativeTribunal, Chandigarh for challenging the order of termination. By itsjudgment dated 8 November 2005, the Tribunal held that the respondentswere working as ‘civil cooks’ continuously since the date of their initialappointment. In the view of the Tribunal, the respondents could nothave been treated to be privately engaged as daily wagers and RegimentalFunds are not private funds raised out of individual contributions madeby the Junior Commissioned Officers. Consequently, the order oftermination was quashed with a direction to reinstate the respondents.The Tribunal has denied back wages but directed that the respondentsshould be treated to be in continuous service as civil cooks for the periodduring which they remained out of employment. While observing thatno specific scheme was shown to it under which regularization could beclaimed, the Tribunal has granted liberty to the respondents to representtheir cases for regularization before the appropriate authority and directedthat if there is a scheme in existence, their applications should beconsidered in accordance with their position in seniority.

3. The facts pertaining to the companion appeal are similar.

4. The Union of India assailed the above directions before theDivision Bench of the High Court. The Writ Petitions have been dismissed.

5. Assailing the judgment of the Tribunal, Mr. Kailash Vasudev,learned Senior Counsel appearing on behalf of the Union of India submitsthat the position of Unit run Canteens of the Indian Army is not resintegra and has been settled by a judgment of a three-Judge Bench inR.R. Pillai (D) Through Lrs. Versus Commanding Officer,Headquarters, Southern Air Command (U)[1]. It has been submittedthat following this decision, the position in law is well settled thatemployees of Unit run Canteens are not engaged by the Army authoritiesand do not hold a post under the Union Government. This decision, has 1[2009 (13) SCC 311]

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Asubsequently been followed in Union of India versus Gobinda PrasadMula[2].

6. In the above premises, it was urged that the basis on whichreinstatement was granted is contrary to the law laid down by this Court.Learned counsel submitted that the Tribunal had no jurisdiction to entertainBthe Original Application, having regard to the provisions of Section 14 ofthe Administrative Tribunals Act, 1985 (“the Act”).

7. On the other hand, Mr. Ashok Agarwal, learned counselappearing on behalf of the respondents submits that the Tribunal haselaborately considered the facts of the present appeals and has takenCcognizance of the fact that though the respondents had workedcontinuously since 1993, their services were abruptly terminated in 2003.Learned counsel submitted that according to the finding of the Tribunal,the services of the respondents were arbitrarily terminated on the groundthat they had declined to comply with a unilateral request to enter into aDcontract contrary to the original terms of engagement. Moreover, it wasurged that following the decision of the Tribunal, they were reinstated on9 January 2006, subject to the outcome of the Writ Petitions. Finally, itwas urged that during the pendency of these proceedings, by an interimorder dated 14 March 2014, this Court had directed that the pendency ofthe proceedings will not come in the way of the Union GovernmentEframing a policy for regularization of persons who are paid out ofRegimental Funds. Learned counsel submitted that there is in fact sucha policy, which is contained in Office Memorandum No.8(1) 2012/D(Civ II) dated 26 March 2012 of the Government of India in the Ministryof Defence.F

8. The position of Unit run Canteens of the Indian Army is nolonger res integra following the decision of the three-Judge Bench inR.R. Pillai (supra). The reference to the Bench of three-Judges wasoccasioned as a result of a doubt having been cast on an earlier decisionof a two-Judge Bench in Union of India versus M. Aslam[3]. The BenchGof three-Judges observed that despite noticing that Unit run Canteensare not funded from the Consolidated Fund of India, the two-Judge Benchin M. Aslam (supra) erroneously held that these canteens are funded 2[2012 (13) SCC 565]H3[2001 (1) SCC 720]

by the Canteen Stores Department (CSD). In R.R. Pillai (supra), afterreviewing the position of regimental canteens, this Court held that theemployees have not been granted the status of government employeesat any stage. Hence the reference was answered by holding thatemployees of the Unit run Canteens are not government employees.This decision has been followed in a subsequent decision in GobindaPrasad Mula (supra).

9. In the present case, the judgment of the Tribunal is renderedunsustainable by the position of law which has been elaborated in boththe above decisions. Indeed, once it is held that employees of regimentalcanteens are neither government servants nor are they engaged inconnection with a civil post under the Union, the Tribunal would havehad no jurisdiction to entertain the claim under Section 14 of the Act.

10. In this view of the matter, the directions which have beenissued by the Tribunal are unsustainable. The submission which wassought to be urged by learned counsel appearing on behalf of therespondents based on the Office Memorandum dated 26 March 2012 ofthe Ministry of Defence is misconceived. The Office Memorandumapplies to casual workers who are working in Directorates/Departmentsof the Ministry of Defence. Persons in the position of the respondentsare not employed by either a Directorate or Department of the Ministryof Defence. Their role and position is already elaborated upon by thetwo judgments which we have cited above.

11. In pursuance of the judgment of the Tribunal, the respondentswere reinstated, though subject to the outcome of the writ petitions. Asa result of the order of reinstatement, they are continously in the serviceof the regimental canteens.

12. Once we have come to the conclusion that they do not havethe status of government servants, we will necessarily to have to setaside the order passed by the Tribunal and the order of the High Courtaffirming that decision.

13. However, we need to clarify that though we are allowingthese appeals in the aforesaid terms, the continuance of the respondent-workmen would depend upon the authorities at the regimental canteens.It will be open to them to take a sympathetic view in regard to availing AB

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Atheir services having regard to the long years of work which have beenput in by them.

14. The Civil Appeals are accordingly, allowed. The judgment ofthe High Court shall stand set aside. In consequence, Original Applicationsfiled before the Tribunal shall stand dismissed. There shall be no orderBas to costs.

Devika Gujral

Appeals allowed.

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