As per case facts, the Respondents, engaged as casual civil cooks by the Army Training Command and paid from Regimental Funds since 1993/1994, were terminated in 2003. The Central Administrative ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.12004 OF 2018
(ARISING OUT OF SLP (CIVIL) NO.8559 OF 2014 )
UNION OF INDIA AND OTHERS .. Appellant(s)
Versus
DYALU RAM .. Respondent(s)
WITH
CIVIL APPEAL NO. 12005 OF 2018
(ARISING OUT OF SLP (CIVIL) NO.8561 OF 2014 )
J U D G M E N T
DR. DHANANJAYA Y. CHANDRACHUD, J.
Delay condoned.
Leave granted.
1.These appeals have arisen from a judgment dated 12 March
2010 of the High Court of Himachal Pradesh, affirming the
decision of the Central Administrative Tribunal.
2.The Respondents were engaged in 1993 and 1994 respectively
on casual basis by the Headquarters, Army Training Command
(ARTRAC), Shimla. The wages payable to them were disbursed out
of Regimental Funds. They were terminated from service with
effect from 1 September 2003. The respondents moved the Central
2
Administrative Tribunal, Chandigarh for challenging the order of
termination. By its judgment dated 8 November 2005, the
Tribunal held that the respondents were working as ‘civil cooks’
continuously since the date of their initial appointment. In
the view of the Tribunal, the respondents could not have been
treated to be privately engaged as daily wagers and Regimental
Funds are not private funds raised out of individual
contributions made by the Junior Commissioned Officers.
Consequently, the order of termination was quashed with a
direction to reinstate the respondents. The Tribunal has denied
back wages but directed that the respondents should be treated
to be in continuous service as civil cooks for the period during
which they remained out of employment. While observing that no
specific scheme was shown to it under which regularization could
be claimed, the Tribunal has granted liberty to the respondents
to represent their cases for regularization before the
appropriate authority and directed that if there is a scheme in
existence, their applications should be considered 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 the
Division 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
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of India submits that the position of Unit run Canteens of the
Indian Army is not res integra and has been settled by a
judgment of a threeJudge Bench in R.R. Pillai (D) Through Lrs.
Versus Commanding Officer, Headquarters, Southern Air Command
(U)
1
. It has been submitted that following this decision, the
position in law is well settled that employees of Unit run
Canteens are not engaged by the Army authorities and do not hold
a post under the Union Government. This decision, has
subsequently been followed in Union of India versus Gobinda
Prasad Mula
2
.
6.In the above premises, it was urged that the basis on which
reinstatement was granted is contrary to the law laid down by
this Court. Learned counsel submitted that the Tribunal had no
jurisdiction to entertain the Original Application, having
regard to the provisions of Section 14 of the Administrative
Tribunals Act, 1985 (“the Act”).
7.On the other hand, Mr. Ashok Agarwal, learned counsel
appearing on behalf of the respondents submits that the Tribunal
has elaborately considered the facts of the present appeals and
has taken cognizance of the fact that though the respondents had
worked continuously 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 ground that they had declined
1 [2009 (13) SCC 311]
2[2012 (13) SCC 565]
4
to comply with a unilateral request to enter into a contract
contrary to the original terms of engagement. Moreover, it was
urged that following the decision of the Tribunal, they were
reinstated on 9 January 2006, subject to the outcome of the Writ
Petitions. Finally, it was urged that during the pendency of
these proceedings, by an interim order dated 14 March 2014, this
Court had directed that the pendency of the proceedings will not
come in the way of the Union Government framing a policy for
regularization of persons who are paid out of Regimental Funds.
Learned counsel submitted that there is in fact such a 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 Ministry
of Defence.
8.The position of Unit run Canteens of the Indian Army is no
longer res integra following the decision of the threeJudge
Bench in R.R. Pillai (supra) . The reference to the Bench of
threeJudges was occasioned as a result of a doubt having been
cast on an earlier decision of a twoJudge Bench in Union of
India versus M. Aslam
3
. The Bench of threeJudges observed that
despite noticing that Unit run Canteens are not funded from the
Consolidated Fund of India, the twoJudge Bench in M. Aslam
(supra) erroneously held that these canteens are funded by the
Canteen Stores Department (CSD). In R.R. Pillai (supra), after
reviewing the position of regimental canteens, this Court held
3[2001 (1) SCC 720]
5
that the employees have not been granted the status of
government employees at any stage. Hence the reference was
answered by holding that employees of the Unit run Canteens are
not government employees. This decision has been followed in a
subsequent decision in Gobinda Prasad Mula (supra).
9.In the present case, the judgment of the Tribunal is
rendered unsustainable by the position of law which has been
elaborated in both the above decisions. Indeed, once it is held
that employees of regimental canteens are neither government
servants nor are they engaged in connection with a civil post
under the Union, the Tribunal would have had no jurisdiction to
entertain the claim under Section 14 of the Act.
10.In this view of the matter, the directions which have been
issued by the Tribunal are unsustainable. The submission which
was sought to be urged by learned counsel appearing on behalf of
the respondents based on the Office Memorandum dated 26 March
2012 of the Ministry of Defence is misconceived. The Office
Memorandum applies to casual workers who are working in
Directorates/Departments of the Ministry of Defence. Persons in
the position of the respondents are not employed by either a
Directorate or Department of the Ministry of Defence. Their
role and position is already elaborated upon by the two
judgments which we have cited above.
11.In pursuance of the judgment of the Tribunal, the
respondents were reinstated, though subject to the outcome of
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the writ petitions. As a result of the order of reinstatement,
they are continously in the service of the regimental canteens.
12.Once we have come to the conclusion that they do not have
the status of government servants, we will necessarily to have
to set aside the order passed by the Tribunal and the order of
the High Court affirming that decision.
13.However, we need to clarify that though we are allowing
these appeals in the aforesaid terms, the continuance of the
respondentworkmen would depend upon the authorities at the
regimental canteens. It will be open to them to take a
sympathetic view in regard to availing their services having
regard to the long years of work which have been put in by them.
14. The Civil Appeals are accordingly, allowed. The judgment
of the High Court shall stand set aside. In consequence,
Original Applications filed before the Tribunal shall stand
dismissed. There shall be no order as to costs.
.... .........................J.
(DR. DHANANJAYA Y. CHANDRACHUD)
.............................J.
( M.R. SHAH )
New Delhi,
Dated: December 11, 2018.
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ITEM NO.14 COURT NO.13 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 12004/2018
(@ PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO.8559 OF 2014)
UNION OF INDIA & ORS. Appellant(s)
VERSUS
DYALU RAM Respondent(s)
WITH
SLP (CIVIL) NO.8561 OF 2014
C.A. No. 12005/2018 (XIV)
Date : 11-12-2018 These appeals were called on for hearing
today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE M.R. SHAH
For Appellant(s) Mr. Kailash Vasudev, Sr. Adv.
Mr. R. Balasubramanian, Adv.
Mrs. Sadhna Sandhu, Adv.
For Respondent(s) Mr. Ashok Agarwal, Adv.
Mr. Vipin Kumar Jai, AOR
UPON hearing the counsel the Court made the following
O R D E R
Delay condoned.
Leave granted.
The Appeals are allowed in terms of the Signed Reportable
Judgment.
Pending applications, if any, stand disposed of.
(GEETA AHUJA) (SAROJ KUMARI GAUR)
COURT MASTER (SH) BRANCH OFFICER
( The Signed Reportable Judgment is placed on the file)
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