Union of India vs Dyalu Ram

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 Signature Not Verified

(ARTRAC), Shimla.

Digitally signed by VISHAL ANAND Date: 2019.01.03

The wages payable to them were disbursed out 16:08:39 IST Reason:

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 3

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 Mula2.

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. Aslam3. 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 6

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.

7

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)