Central Administrative Tribunal - Delhi
Surender Kumar Yadav vs Union Of India on 12 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA NO.304 of 2014
New Delhi: this the 12th day of May, 2014
HONBLE MR. ASHOK KUMAR, MEMBER (A)
HONBLE MR. RAJ VIR SHARMA, MEMBER (J)
Surender Kumar Yadav
CAMERO AF Canteen
Subroto Park,
New Delhi-110010. .Applicant
(By Advocate: Mr. Gyanender Singh)
VERSUS
Union of India,
Through its Defence Secretary,
Ministry of Defence,
South Block,
New Delhi-110010.
The Chief of Air Staff
Air Headquarter (Vayu Bhavan)
DHQ Post Office, R.K. Puram,
New Delhi-110 011.
The A.O.C.
AFCAO, Subroto Park
New Delhi-110 010. Respondents
(By Advocate: Mr. Satish Kumar)
O R D E R
Ashok Kumar, Member (A) The OA has been filed against the alleged unjust and unfair action of the respondents whereby Respondent No.3 has offered an appointment without following due process of recruitment to one Shri Anil Kumar Berwal to the post of Assistant Manager of CAMERO URC (Extension), ignoring the service and experience of the applicant who had been working in CAMERO AF CSD Canteen as Assistant Manager from 12.4.2004 to 27.2.2009.
2. Following reliefs have been sought in this OA:-
To quash and set aside the proceedings which is going on to appoint Sh. Anil Kumar Berwal, JWO, as Assistant Manager CAMERO AF CANTEEN, Subroto Park, New Delhi, as the same are illegal, unjust and against the rules framed vide letter No.96029/Q/DDGCS dated 28th April, 2003.
To allow the applicant to participate in the process of recruitment for the post of Assistant Manager, CAMERO AF CANTEEN, Subroto Park, New Delhi, keeping in view the experience, qualifications of the applicant over the person Sh. Anil Kumar Berwal, JWO, who is being appointed in the post of Assistant Manager in the said canteen.
To direct the respondents to publish the vacancy in the Employment News and daily newspapers, circulated in the locality or any other area, so as to the most suitable and eligible candidates can participate in the same process.
To direct the respondents to place the related record before the court for its kind perusal.
Any other relief the Honble court may deems fit and proper in the facts and circumstances of the case.
3. On the first date itself when the matter was listed, respondents were asked to specifically clarify whether the Canteen in question is a Public Funded Canteen or not.
4. Short counter reply has been filed on behalf of the respondents in pursuance of Tribunals direction dated 29.01.2014. It is stated in the counter reply that the applicant is not holding a Civil post and the dispute raised by the applicant does not fall within domain of public employment. The jurisdiction of this Tribunal cannot, therefore, be invoked in view of the law laid down by the Honble Supreme Court in the case of Union of India Vs. Gobinda Prasad Mula ( Civil Appeal No.8772/2012). In the matter of R.R.Pillai (dead) through Lrs. Vs. Commanding Officer HQ S.A.C (U) and Ors.( Civil Appeal No.3495 of 2005 along with Civil Appeal Nos.3557-3559, 3560 and 3561 of 2005 decided on 28.04.2009) it has been categorically held that the employees of Unit Run Canteen (URC) are not Government servants and that such Canteens are simply retailers who pay their employees from profits earned by them from selling goods procured from CSD. A copy of the judgments, referred to above, have been annexed as Annexure R1 and Annexure R2 respectively to the counter reply
5. Rejoinder has been filed to the counter reply in which the reports of the Public Accounts Committee (2011-12) (48th Report) and (2012-13) (75th Report) have been referred. It has been stated that when the aforenoted two judgments of the Honble Supreme Court were passed, since the two reports of the Public Accounts Committee (PAC) were neither in existence nor were placed before the Honble Apex Court,, the said judgments would not have been passed in favour of the respondents. It is also stated that the URCs are independent of CSD but their functioning is governed by the policies laid down by the Ministry of Defence. Some of the the major recommendations contained in the Audit Report in respect of URCs have been stated in the rejoinder. It is also submitted that the where the financial assistance of the State is given to any authority or department, it would definitely fall under the definition of State. The URCs were being funded by the government of India through the Consolidated Fund of India and, therefore, the URCs cannot be ruled out to be an instrumentally of the State within the meaning of Article 12 of the Constitution of India. The applicant has, therefore, submitted in the rejoinder that it is clearly established that the URC is a Government Venture and the employees of the URCs are employees of Government of India and, therefore, the OA is fit to be allowed.
6. We have heard learned counsel for both parties, namely Shri Gynander Singh, counsel for the applicant and Shri Satish Kumar, counsel for the respondents.
7. Applicants counsel mainly referred to the recommendations of PAC and reiterated the fact that had the reports of PAC been placed before the Honble Supreme Court, a different view would have taken. Counsel for the applicant also produced a copy of letter dated 31.03.2014 addressed to the General Manager, Canten Stores Department, Adelphi 119, M.K.Road, Mumbai from the Government of India, Ministry of Defence conveying sanction to the payment of Quantitative Discount by Canteen Stores Departments to the URCs. He also referred to paragraph 3 of the aforenoted letter according to which the Quantitative Discount was subject to audit by C&AG. A copy of the decision of the Central Information Commission dated 09.04.2014 has also been produced, in paragraph 2 of which, it has been mentioned that the CPIO vide letter dated 4.4.13, had informed appellant that the information sought was related to Unit Run Canteens and URCs are private entities which do not come within the purview of public authority as held by the Honble Supreme Court of India. The appellant had taken the stand that URCs are not private entities. The Central Information Commissioner directed PIO, HQ Central Air Command, Allahabad to provide information held by them in respect of the queries raised.
8. On the other hand, the learned counsel for the respondents highlighted the points raised in the counter reply that the URCs are not public funded Cantens and , therefore, they are not within the jurisdiction of this Tribunal. He referred to the Letter of Appointment of the applicant dated 09.06.2009 at Appendix C (page 16 of the paper book) wherein in paragraph 1, it has been stated as under:-
1. With reference to your application dated 22 May 09 for employment in the Unit Run Canteen, a Non-Public Fund venture, and subsequent interview and written test, you are hereby appointed as ACCOUNTANT TYPE A with effect from 01 July 09 in the pay scale of Rs.5500-175-9000 on the following terms and conditions: Learned counsel for respondents also referred to the judgments of the Honble Supreme Court mentioned in the short counter reply of the Respondents.
9. We have perused the pleadings on record as well as the documents and have also considered the arguments of both parties.
10. First of all, we observe the Letter of Appointment of the applicant dated 09.06.2009 states that the appointment as Accountant Type A w.e.f. 01.07.2009 in CAMERO AF CANTEEN, Subroto Park, New Delhi, a Non-Public Fund venture(Appendix C). The said letter of appointment has been acted upon by the applicant and, therefore, the contents of letter are deemed to have been accepted by the applicant which among others include that the status of Unit Run Canteen was of Non-Public Fund Canteen.
11. We have also perused the judgment of the Honble Supreme Court in Gobinda Prasad Mulas case (Supra) and ASnnexure R-1 of the counter reply, wherein their Lordships in paragraphs 12 and 13 have observed as under:-
12. We have perused the observations made by the Tribunal insofar as the answer to the preliminary objection raised by the Appellants, i.e., to hold that the Respondent-herein holds a civil post relying upon the observations made in Aslams case (supra), is concerned. The said decision has now been over-ruled by the decision of three Judge Bench of this Court in R.R. Pillais case (supra), wherein this court has specifically observed that an employee working in a URC canteen is not the holder of a civil post. The relevant paragraphs are extracted below:
12. The factors highlighted to distinguish Chotelal case [(1999) 1 SCC 554) in our considered opinion are without any material. There was no scope for making any distinction factually between Aslam case and Chotelal case. In our view, therefore, Aslam case was not correctly decided.
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15. It is to be noted that financial assistance is given, but interest and panel interest are charged. URCs can also borrow from financial institutions. The reference is answered by holding that employees of URCs are not government servants.
13. In view of the observations made in the above-said decision, in our view, the Tribunal was not justified in entertaining the application filed by the Respondent and should not have answered the prayer in the application in favour of the Respondent. (Emphasis supplied)
12. A copy of the other judgment referred to by the respondents in the matter of R.R.Pillai (dead) through Lrs. (Supra) has been filed as Annexure -R2. In paragraph 8 of the judgment, the Honble Supreme Court had discussed the status of URCs and also referred to the earlier judgment in Union of India Vs. Mohd.Aslam( 2001 (1) SCC 720) delivered by a three-Judge Bench and that these appeals were decided in respect of a limited controversy, i.e. the status of an employee of URC in Armed Forces. In paragraph 3 of aforenoted judgment it was held that the terms and conditions of service of canteen employees are covered by the rules called The Rules regulating the Terms and Conditions of Service of Civilian Employees of Air Force Unit Run Canteen paid out of Non Public Funds. Paragraph 8 of the judgment is reproduced bellow:-
8. In the case of Aslams case (supra) a Bench of this court proceeded on incorrect factual premises inasmuch as after noticing that the URCs are not funded from the Consolidated Fund of India, it went wrong in concluding that the URCs are funded by CSD as well as the articles were supplied by the CSD. Unfortunately, it did not notice that no such funding is made by the CSD. Further, only refundable loans can be granted by the CSD to URCs at the rate of interest laid down by it from time to time upon the application of URCs seeking financial assistance. URCs can also take from other Non-Public Funds. Further observation regarding supply is also not correct. URCs in fact, purchase articles from CSD depots and it is not an automatic supply and relation between URCs and CSDs is that of buyer and seller and not of principal and the agent. This Court further went wrong in holding that URCs are parts of CSDs when it has been clearly stated that URCs are purely private ventures and their employees are by no stretch of imagination, employees of the Government or CSD. Additionally, in Aslams case (supra) reference was made to Chandra Raha and Ors. V. Life Insurance Corporation of India (1995 Supp (2) SCC 611). The Bench hearing the matter unfortunately did not notice that there was no statutory obligation on the part of the Central Government to provide canteen services to its employees. The profits generated from the URCs are not credited to the Consolidated Funds, but are distributed to the Non Public Funds which are used by the units for the welfare of the troops. As per para 1454 of the Regulation for the Air Force, 1964 the losses incurred by the non public funds are not to be borne by the State. (Emphasis supplied) In paragraph 10 of the judgment, the Honble Supreme Court further observed that after completion of five years, they might be declared as permanent employees but they do not get the status of Government employees at any stage. In paragraph 11, it was held that 11. It is to be noted that financial assistance is given, but interest and penal interest are charged. The URCs can also borrow from financial institutions. The reference is answered by holding that employees of URCs are not government servants.
(Emphasis supplied)
14. It is clear from the above that URC employees are not Government servants. On this count, the OA of the applicant does not fall within the jurisdiction of this Tribunal.
15. In so far as the issue regarding recommendations of the PAC is concerned, we would only like to observe that the settled position emerging out of the law laid down by the Honble Supreme Court in R.R.Pillai (dead) through Lrs.s case (Supra) does not get altered or amended by the recommendations of the PAC. As long as the judgment in R.R.Pillai (dead) through Lrs.s case (Supra) remains, it has to be followed. We would also like to observe that no decision of the Government has been produced before us on the recommendations of PAC. We are, therefore, not convinced with the argument of the learned counsel for the applicant that the recommendations of the PAC should be made a basis for coming to the conclusion to determine the status of the employees of the URCs. The position is clear as held by the Honble Supreme Court on two occasions, both in Gobinda Prasad Mulas (supra) matter as well as in the case of R.R.Pillai (dead) through Lrs. (Supra).
16. There being no reason other than the above having been assigned by the applicant to call for our intervention and in the light of the judgments of the Honb;le Apex Court, we hold that the applicant as an employee of the Unit Run Canteen is not entitled to invoke the jurisdiction of this Tribunal since he is not Government employee.
17. In effect, the OA is not fit to be entertained and is accordingly rejected. Parties shall bear their own costs.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) /usha/