Central Administrative Tribunal - Allahabad
Mahendra Singh vs Union Of India on 3 April, 2024
(Reserved on 15.03.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Pronounced on 03rd day of April 2024
Original Application No. 1605 of 2012
Hon'ble Mr. Justice B.K. Shrivastava, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Mahendra Singh, aged about 50 years, son of Late Sri Chandra, resident
of House No. 52, North Arjun Nagar, Agra - U.P. Presently posted as
Store Keeper, Station Canteen URC, Agra.
. . .Applicant
By Adv : Shri Shyamal Narain
VERSUS
1. The Union of India through the Secretary, Ministry of Defence,
Government of India, New Delhi.
2. The Chairman/General Manager, C.S.D. Board of Administration,
Adelphi, 119, Maharshi Karve Road, Mumbai - 400020.
3. The General Officer Commanding, U.B Area, U.B Area
Headquarters, Bareilly Cantt., Bareilly - U.P.
4. The Station Commander, Indian Army Station Headquarter, Agra -
U.P.
5. The Administrative Commander, Indian Army Station Headquarter,
Agra - U.P.
. . . Respondents
By Adv: Shri Krishna Kant Ojha
ORDER
Delivered By:- Hon'ble Dr. Sanjiv Kumar, Member (A) This original application has been filed under section 19 of Administrative Tribunals Act 1985 seeking direction to the respondents to post the applicant on the CSD side of the Army Canteen at Agra and to pay him the salary and other emoluments, as payable to an employee working on the CSD side, and not as an employee of the Unit Run Canteen (as being 2 done presently). Prayer has also been made to command the respondents to treat the applicant as an employee working on the CSD side of the Army Canteen at Agra, for all purposes, right from the time he was reinstated in service following the passing of the judgment and order dated 06.09.1996 in OA No. 1565/1993 - Mahendra Singh Vs. The Union of India and others, quashing the order dated 29.09.1993 terminating his services as Salesman, Station Canteen, Agra and to pay him the entire arrears with interest of the difference of the salary and other allowances and emoluments payable to him as an employee on the CSD side, and that which has actually been paid to him as an employee of the Unit Run Canteen, reckoned from the date of his reinstatement in compliance of the aforesaid judgment dated 06.09.1996.
2. The case came up for last hearing on 15.03.2004. Shri Shyamal Narain, learned counsel for the applicant and Shri Krishna Kant Ojha, learned counsel for the respondents were present and heard. We have gone through the record and have carefully examined and considered the rival contentions.
3. The case of the applicant as in the OA is that he was initially appointed in non-CSD Section of Station Canteen, Agra as Salesman vide order dated 01.12.1990. The said order is at page 37 of OA as Annexure A-1, which looks like following: - 3
"Tele Mil 25 Station Head Quarters Agra
1 Dec. 90
585003/1/Q
Shri Mahendra Singh
Son of, Sri Chand
House No. 52, North Arjun Nagar,
Agra.
Provisional Appointment in the Non CSD SEC Station Canteen Agra.
1. You have been provisionally appointed in Non CSD Sec of Station Canteen w.e.f. 01 Dec. 90 as a Salesman. Pay will be Rs. 500/ per month.
(BR Bhatia) Col.
Admn Comdt. (C II).
Copy to:-
Station CSD Canteen Agra"
4. Thereafter, the applicant was appointed on the post of Chowkidar at Station CDS Canteen, Agra w.e.f. 01.05.1992 vide order dated 30.04.1992 passed by the Administrative Commandant / In-charge Station Canteen, Indian Army Station Headquarter, Agra, which is at page 38 of OA as Annexure A-2, which reads following: -
"Tele Mil 2024 Station Head Quarters Agra 30 Apr. 92 585003/1/Q Shri Mohinder Singh C/O Station CSD Canteen Agra APPOINTMENT IN CSD CATEEN
1. It is to inform you that you have been appointed as Chowkidar in Station CSD Canteen Agra wef 01 May 92. Your pay will be Rs. 750/- per month.
(BR Bhatia) Col.
Admn Comdt. (C1-I).
Copy to: -
Station CSD Canteen, Agra."4
5. Subsequently, vide order dated 21.12.1992, the applicant was appointed as Summary Clerk/Salesman at Station CSD Canteen, Agra w.e.f. 01.01.1993 vide order dated 21.12.1992 and the said order as at page 39 of OA as Annexure A-3, which reads as follows: -
"Tele Mil, 2024 Station Headquarters Agra 585003/1Q Station Canteen Agra 21 Dec 92 EMPLOYMENT OF STAFF IN EXISTING VACANCY
1. Refer to your Minute dated 15 Dec 92.
2. Shri Mahender Singh is remustered to Summary Clerk/ Salesman wef 01 Jan 93.
3. Pay be adjusted accordingly.
(CPS Chauhan) Col.
Off. Adm.Comdt (C1-I)
Copy to
Shri Mehender Singh -for information
C/O Sta Canteen Agra"
6. It is stated by the applicant that vide order dated 29.09.1993, his services were terminated w.e.f. 01.10.1993. The aforesaid termination order is at page 40 of OA as Annexure A-4, which reads as follows: -
"Tel Mil 2024 Station Head Quarters
Agra
29 Sept. 93
585003/1/Q
Shri Mahendra Singh
Sales Man, c/o Station Canteen,
Agra
Termination of Service
5
1. As per directions of Chairman Station Canteen (Stn Cdr) your services are no more required in the Station Canteen and terminated w.e.f. 01.Oct.93.
(Shajan Singh) COL.
For Admn Comdt.
Copy to Station Canteen Agra.
- Please pay his dues as per existing rules"
7. The above four annexures are basic document, which have been relied by the applicant to establish his claim. The contention of the applicant is that after his termination, he filed OA No. 1565/1993 before this Tribunal and the same was decided vide order dated 06.09.1996, which is at page 41 of OA as Annexure A-5. The claim of the applicant is that this order of the Tribunal clearly established that he is an employee of CSD side of the canteen and therefore, his prayer should be granted and OA should be allowed. In support, he has put forward the finding of the Tribunal which from para 7 onwards reads as follows: -
"7. During the course of the arguments, the learned counsel for the respondents took the plea that the application is not maintainable before this Tribunal as non CSD canteen was being run by regimental funds. Therefore, it does not fall within the jurisdiction of this Tribunal.
8. We have given careful consideration to the aforesaid plea of the learned counsel for the respondents. There is no doubt that initial appointment of the applicant was on the non CSD side of the Canteen. However, admittedly he was later on shifted to the CSD side of the Canteen 6 initially as Chowkidar and subsequently as Summary Clerk /Salesman. At the time, services of the applicant were terminated by the impugned order, he was working on the CSD side of the Canteen. It has already been held in a number of cases that CSD Canteen comes within the jurisdiction of the Tribunal. We are, therefore, not persuaded by the plea of the respondents that the present case is not maintainable before us.
9. On merits, we find that the ground taken that is the applicant was not working on the non CSD side of the Canteen, the closure thereof would have had no effect on the continuance of otherwise of the applicant's service on the CSD side of the canteen, has force. There is no doubt that the applicant's services could have been terminated by giving him one month's notice or one month's pay in lieu. There would have been no reason for us to interfere if this was a case of simplicitor discharge. However, it is clear from the averments of the respondents themselves that the discharge has been on account of his alleged involvement in financial mis- management of the non CSD section of the Canteen, resulting in financial loss. No record has been produced before us by the respondents to indicate that the applicant involved in such mis-management. They have actually admitted that nothing came out in the enquiry which was ordered. The termination of the applicant's services is, therefore, not a discharge simplicitor but a discharge as punitive measure. It is settled law that services of temporary employees cannot be terminated in the garb on simplicitor discharge when in actually it is a penal measure. In such a situation, principles of natural justice would be violated, if the person whose 7 services are terminated is not given an opportunity to defend his case.
10. In view of the forgoing, we find and hold that the impugned order dated 29.9.1993 is bad in law and the same is accordingly quashed. The applicant shall be reinstated in service forthwith on communication of this order. Respondents, however, shall be at liberty to take appropriate action against the applicant in accordance with law, in case he involved in any misconduct, as alleged by the respondents.
11. The application is disposed of with the above direction leaving the parties to bear their own cost."
8. Pursuant to the aforesaid order, the applicant approached the respondents to reinstate him but the respondents instead of reinstating filed Review Application No. 56/1997 seeking review of the order dated 06.09.1993. On the other hand, the applicant also filed Contempt Petition No. 98/1996 as the order of the Tribunal was not getting implemented. During the pendency of the contempt petition, the respondents issued a letter dated 22.01.1997 (Annexure A-6) to the applicant directing him to report on duty to Station Canteen, Agra stating that he shall be paid the agreed salary w.e.f. 07.09.1996 and the terms and conditions of his employment shall be governed by the SOP dated 24.05.1995. Thereafter, the applicant joined duties on 05.02.1997 and both the contempt petition as well as the review application through two separate orders dated 04.05.2000 were disposed of.
8
9. The applicant stated that in the order dated 04.05.2000 passed in review application no. 56/1997, the Tribunal once again rejected the respondents' plea to the effect that the applicant was not working on CSD side but on the non-CSD side. The applicant further contended that after dismissal of the aforesaid review application, the respondents filed Civil Misc. Writ Petition No. 41936/2000 before Hon'ble High Court - Union of India Vs. Central Administrative Tribunal, Allahabad Bench, Allahabad and another challenging the orders dated 06.09.1996 and 04.05.2000 passed in OA No. 1565/1993 and Review Application No. 56/1997 respectively, but the aforesaid Writ Petition was dismissed by the Hon'ble High Court vide judgment dated 31.08.2004 which reads as follows: -
"The petitioner was appointed as temporary servant on 01.12.1990. His services were terminated on 29.9.1993. He filed original application before the Central Administrative Tribunal. This was allowed on 6.9.1990. The petitioner filed a review application, which was also dismissed on 4.5.2000. Hence the present writ petition.
We have heard Shri Subodh Kumar, Counsel for the petitioner and Shri P.K. _____ Counsel for the respondents.
The Tribunal has recorded finding that this was not termination simplicitor but was passed as punishment. It is in view of this, the Tribunal has quashed the order and has also granted liberty to the petitioner to take appropriate departmental proceedings against the contesting respondent. There is no illegality in the order. We see no justification to interfere. The writ petition is dismissed".9
10. The applicant contended that the aforesaid order dated 31.08.2004 passed by the Hon'ble High Court was not challenged further and allowed to attain finality, thus the finding recorded by the Tribunal that the applicant had been working on the CSD side of the Canteen at the time of his termination has become final but upon his reinstatement in service, he was neither posted on the CSD side nor given the salary, emoluments and other allowances admissible to CSD side employees. Therefore, the applicant preferred a representation dated 25.02.2005 to the various respondents' authorities, but having received no response, he sent a detailed representation dated 18.06.2007 by registered post to the Station Commander, Station Headquarter, Agra which was disposed of vide order dated 18.07.2007 stating that the matter of service conditions of Unit Run Canteen employees (in short "URC") has now been settled by the Hon'ble Supreme Court and the applicant alongwith other employees was being dealt with according to the new rules issued in the light of orders of the Hon'ble Supreme Court.
11. The applicant alleged that this reply was given illegally, glossing over the fact that the Tribunal had long back held the applicant to be an employee working on the CSD side and comprehensively rejected the respondents plea that he was an URC employee. Being aggrieved by the aforesaid order, the applicant again filed OA No. 931/2007 before this Tribunal and 10 obtained order dated 28.08.2008 by which the Tribunal had quashed and set aside the order dated 18.07.2007 as "casual and perfunctory" and remitted the matter to the competent authority to reconsider and decide by a reasoned and speaking order, but since no compliance was made by the respondents despite several reminders, the applicant submitted yet another representation / reminder on 15.11.2010. Even this representation failed to elicit any response, the applicant sent a detailed representation dated 12.01.2011 by the registered post to the Chairman/General Manager (C.S.D), Board of Administration, Adelphi, Mumbai; who vide letter dated 01.02.2011 sent the aforesaid representation back to the applicant with the advise that he should approach the Administrative Commandant / In-charge, Station Canteen, Station Headquarter, Agra as the order of termination of his service dated 29.09.1993 was passed by them and not by the Canteen Stores Department, Government of India, Ministry of Defence, Mumbai.
12. Thereafter, the applicant moved a detailed representation dated 25.05.2022 before the G.O.C, U.B Area Headquarter, Bareilly Cantt., Bareilly through the Station Commander, Station Headquarter, Agra reiterating his grievance and in response to this, he received response dated Nil from Colonel K.S. Chahal, Officiating Officer In-charge, URC, stating that "it is reiterated you are an employee of Station HQ Unit Run Canteen, Agra and not that of Canteen Store Department, Agra as 11 such you are requested to interpret the order dated 06.09.1996 of the Hon'ble Court appropriately". This letter was followed by another communication dated 13.07.2011 issued under the signature of Lt. Col. Sandeep Sharma, for the GOC, HQ UB Area stating that the applicant's complaint had been scrutinized in detail and reiterating that before termination of his service in 1993, he was an employee of Station HQ Unit Run Canteen, Agra and not an employee of Canteen Stores Department. The letter further states that upon his reinstatement, he had been placed as an employee of the Station Headquarter Unit Run Canteen, Agra and that he was an employee of the Unit Run Canteen and not the Canteen Stores Department.
13. It is contended by the applicant that the aforesaid communications have been issued in contravention of the judicial finding recorded by this Tribunal in order dated 06.09.1996 passed in OA No. 1565/1993 which was affirmed by the Hon'ble High Court. Thus, on legal advise, the applicant filed Civil Misc. Writ Petition No. 38642/2012 before the Hon'ble High Court challenging the aforesaid two communications. However, the aforesaid writ petition was dismissed on the ground of alternative remedy, hence the applicant has filed the instant original application to get his grievance redressed mainly on the ground that since the order dated 06.09.1996 and 04.05.2000 passed by this Tribunal in OA No. 1565/1993 and Review Application No. 56/1997 respectively were upheld by the 12 Hon'ble High Court and have long back attained finality for want of any further challenge by the respondents, therefore, the respondents are bound by the finding recorded by the Tribunal and cannot act contrary to them and the applicant is entitled for the reliefs claimed in the OA. Therefore, he prayed that the OA may be allowed.
14. Upon notice, the respondents have filed counter affidavit wherein they again take stand that the instant original application does not come within the jurisdiction of this Tribunal because the applicant is neither a CSD employee nor a government employee and he is an employee of Unit Run Canteen and as per the Hon'ble Apex Court judgments, all Unit Run Canteen employees are private employees and not government employees, hence this Tribunal cannot hear this OA.
15. From the record of the O.A, it appears that any rejoinder affidavit has not been filed by the applicant's counsel.
16. Suppl. Counter Affidavit has also been filed where following case laws are filed: -
(i). judgment of Hon'ble Supreme Court dated 05.12.2012 passed in Civil Appeal No. 8772/2012 - Union of India & Ors. Vs. Gobinda Prasad Mula.13
(ii). Judgment of Hon'ble Supreme Court in the case of Union of India and another Vs. Chotelal and others - AIR 1999 SC 376.
(iii). Judgment of Hon'ble Supreme Court in the case of R.R. Pillai, Deceased by L.Rs Vs. Commanding Officer, H.Q.S.A.C (U) and others - AIR 2010 SC 188.
17. The respondents have also filed Suppl. Counter Affidavit (II) on 26.04.2019 and Suppl. Counter Affidavit (III) on 14.05.2019.
18. From the contentions of both the parties, following are coming for our consideration: -
(i). did the C.A.T., Allahabad in its order dated 06.09.1996 passed in OA No. 1565/1993 gave a categorical finding that the applicant is an employee of Canteen Store Department (in short "C.S.D") and what was his status and rights as to service conditions as far as CSD employment is concerned.
(ii). Whether the applicant is able to substantiate that he was a regular CSD employee and he was appointed in a regular post through the constitutional process of public employment having right to a pay scale and other emoluments and benefits at par with other CSD employees ?
(iii). If so, what orders?
19. The applicant has filed following documents in his 14 favour: -
(i). Copy of appointment order dated 01.12.1990 at Annexure A-1.
(ii). Copy of appointment order dated 30.04.1992 at Annexure A-2.
(iii). Copy of appointment order dated 21.12.1992 at Annexure A-3.
(iv). Copy of termination order dated 29.09.1993 at Annexure A-4.
(v). Copy of judgment and order dated 06.09.1996 passed in OA No. 1565/1993 at Annexure A-5.
(vi) Copy of reinstatement order dated 22.01.1997 at Annexure A-6.
(vii). Copy of order dated 04.05.2000 passed in review application 56/1997 at Annexure A-7.
(viii). Copy of order dated 04.05.2000 passed in CCP 98/96 at Annexure A-8.
(ix). Copy of judgment dated 31.08.2004 passed by Hon'ble High Court at Annexure A-9.
(x). Copy of representation dated 25.02.2005 at Annexure A-10.
(xi). Copy of representation dated 18.06.2007 at Annexure A-11.
(xii). Copy of order dated 18.07.2007 at Annexure A-12.
(xiii). Copy of judgment and order dated 28.08.2008 passed in OA No. 931/2007 at Annexure A-13.
(xiv). Copy of representation dated 12.10.2008 at Annexure 15 A-14.
(xv). Copy of representation dated 15.11.2010 at Annexure A-15.
(xvi). Copy of representation dated 12.01.2011 at Annexure A-16.
(xvi). Copy of letter dated 17.01.2011 at Annexure A-17.
(xvii). Copy of letter dated 01.02.2011 at Annexure A-18.
(xviii). Copy of representation dated 25.05.2011 at Annexure A-19.
(xix). Copy of letter dated NIL at Annexure A-20.
(xx). Copy of letter dated 13.07.2011 at Annexure A-21.
(xxi). Copy of order dated 08.08.2012 passed by Hon'ble High Court in Writ Petition No. 38642/2012 at Annexure A-22
20. We have carefully gone through all the above documents. Critical examination of all the above documents filed by the applicant does not shed any light whether his appointment was made through the constitutional scheme of public employment; whether he was appointed by notifying vacancy and calling for applications from the eligible candidates and, whether he was appointed against a substantive vacancy which was available in CSD cadre and was given a scale and was given benefits of that cadre; whether he underwent any for CSD post training and was in due course confirmed in the substantive vacancy after completion of his probation. We do not find any evidence in any of the document produced that the applicant was being 16 paid from CSD fund.
21. While dealing with the case of the applicant and examining it with reference to the judgment of Hon'ble Apex Court dated 10.04.2006 passed in Civil Appeal No. 3595- 3612/1999 in case of Secretary, State of Karnataka and others Vs. Uma Devi & Ors, it is clear that the aforesaid judgment effectively changed the understanding of irregular/illegal stray adhoc appointments in government, which were not through the valid constitutional scheme of public employment. In the aforesaid judgment Hon'ble Apex Court has held as under: -
"41. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the 17 minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
42. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
43. ............18
44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
45. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
46. ........
47. Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such 19 appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed."
22. On the touchstone of the para 44 of the aforesaid judgment, we may examine and ascertain whether any of the documents which are relied by the applicant substantiate his case of being appointed to CSD cadre ? And whether his initial appointment or later changes in appointment or any of his applications before various authorities shed any light on any of the aspects in public employment envisaged in the said para 44 ? We do not find the applicant fulfilling any of the criteria laid down for acceptable modes of entry to public employment.
23. Now, let us critically examine what was the order in the earlier judgment of the Tribunal dated 06.09.1996 in OA No. 1565/93, which the applicant is largely relying as to conclusively substantiating his case that he was a regular CSD employee and not an employee of Unit Run Canteen. As from the said order, we have quoted para 7 to 11 earlier, which reads "during the course of the arguments, the learned counsel for the respondents took the plea that the application is not maintainable before this Tribunal as non CSD canteen was being run by regimental funds. 20 Therefore, it does not fall within the jurisdiction of this Tribunal". But the Tribunal found and said that "we have given careful consideration to the aforesaid plea of the learned counsel for the respondents. There is no doubt that initial appointment of the applicant was on the non CSD side of the Canteen. However, admittedly he was later on shifted to the CSD side of the Canteen initially as Chowkidar and subsequently as Summary Clerk /Salesman. At the time, services of the applicant were terminated by the impugned order, he was working on the CSD side of the Canteen. It has already been held in a number of cases that CSD Canteen comes within the jurisdiction of the Tribunal. We are, therefore, not persuaded by the plea of the respondents that the present case is not maintainable before us".
24. Now, from the said order, it is crystal clear that the Tribunal arrived at the finding about his working in the CSD side with reference to whether the Tribunal had any jurisdiction or not to entertain the said case. And the Tribunal in its order in OA No. 1565/1993 had neither examined nor confirmed as to what was the nature of the employment of the applicant; even though he may be working on the CSD side and so they merely concluded that the said case was within the ambit of the Tribunal.
25. As employee working at certain position in an 21 organization may not necessarily be an employee borne on its cadre. It may just be that he has been shifted from non-CSD side to CSD side on deputation or work assignment and he may be getting the same emoluments from same source what he was getting from the non-CSD side earlier; and from the same funds, which is not a government fund but regimental fund. These aspects were neither examined nor contested and put forth before the Tribunal. The Tribunal only came to the conclusion that at the time when his services were terminated, "he was working on the CSD side of the Canteen, and that does not mean that the Tribunal gave any finding on his nature of employment and what should be his emoluments and service conditions etc. The Tribunal also did not deal in detail the merits of the case but decided the said case only on procedural ground that principle of natural justice was violated, as the person, whose service was terminated was not given reasonable opportunity to defend his case. Even if, the applicant was a temporary employee or deputed employee from URC to CSD, his services could not have been terminated in the garb of simplicitor discharge; when in actuality it was as a penal measure and so the impugned order of termination dated 29.09.1993 was declared bad in law; and the same was accordingly quashed and the applicant was asked to be reinstated in service forthwith. But the respondent were given liberty to take appropriate action against the applicant in accordance with law, in case he was involved in any misconduct, as alleged by the respondents. 22
26. If we read later part of para 9 of the aforesaid order of the Tribunal, it reads ".......It is settled law that services of temporary employee cannot be terminated in the garb on simplicitor discharge when in actuality it is as a penal measure.......". From this, it is very clear that the Tribunal was not considering Mahendra Singh, the applicant as a permanent employee of CSD having a definite pay scale and other emolument of CSD but some sort of temporary employee only. The Tribunal had given finding only about the applicant working on the CSD side and hence the Tribunal having its jurisdiction over such cases. And if any one even temporary or even if temporarily shifted from non-CSD side to CSD side, but working on CSD side will come within the jurisdiction of the said Tribunal, and nothing more.
27. Hence, the averments and the understanding of the applicant that the Tribunal gave a finding that the applicant had been working on CSD side of the Canteen at the time of his termination is true. But mere finding on physical working on CSD side does not substantiate that he was working as regularly appointed permanent employee with all the claims of relief of being confirmed on the CSD side and paid the salary and other emoluments and all the service benefits as admissible to a regular CSD employee w.e.f. 06.09.1996 in compliance of the Tribunal's order dated 06.09.1996. 23
28. In favour of the applicant, only few orders are there. The first one is dated 01.12.1990 when he was appointed provisionally in non-CSD Section of Station Canteen, Agra, which reads following: -
"Tele Mil 25 Station Head Quarters Agra
1 Dec. 90
585003/1/Q
Shri Mahendra Singh
Son of, Sri Chand
House No. 52, North Arjun Nagar,
Agra.
Provisional Appointment in the Non CSD SEC Station Canteen Agra.
1. You have been provisionally appointed in Non CSD Sec of Station Canteen w.e.f. 01 Dec. 90 as a Salesman. Pay will be Rs. 500/ per month.
(BR Bhatia) Col.
Admn Comdt. (C II).
Copy to:-
Station CSD Canteen Agra"
29. Simple examination of the aforesaid document shows that the author of this document has not clearly identifying himself in what capacity he has passed this order, as it is signed in the name of Col. B.R. Bhatia, Administrative Commandant (C.II). If the applicant was appointed in Unit Run Canteen or on non-CSD side Canteen, Agra, clearly the appointing authority or the letter issuing authority, who should have to identify himself as an authority under the Unit Run Canteen and under the same name and seal, the order should have been issued. If it is not so, as in the case here, it gives confused message to the recipient and others that it is issued by some government authority in the Ministry of 24 Defence. This practice of imprecise use of seal and designation for issuing appointment orders (which can be life and death issue or livelihood issue for an individual and his family, as in the present case, it is for the applicant) is certainly a bad practice. And clearly said degenerate practice has created an unwarranted legitimate (?) expectation in the mind of the applicant that he is appointed by some authority in the Defence establishment. Public documents must speak for themselves and their precise purport has to be understood clearly, coherently and reliably by any onlooker. A public document which is only understood by its author and a limited number of "pundits" in the department is essentially a non speaking and bad document, which is authored without application of mind.
30. Similarly, the second document i.e. Annexure A-2 is much more damaging to the respondents' case as it reads following: -
"Tele Mil 2024 Station Head Quarters Agra 30 Apr. 92 585003/1/Q Shri Mohinder Singh C/O Station CSD Canteen Agra APPOINTMENT IN CSD CATEEN
1. It is to inform you that you have been appointed as Chowkidar in Station CSD Canteen Agra wef 01 May 92. Your pay will be Rs. 750/- per month.
(BR Bhatia) Col.
Admn Comdt. (C1-I).
Copy to: -
Station CSD Canteen, Agra."25
31. Simple examination of the above shows that again the order is issued by Col. B.R. Bhatia, Administrative Commandant (C1-1) but in what capacity he has issued this order is not clear. Also it is not clear that what is the nature of the appointment of the applicant. Is it that provisional appointee in the non-CSD Sec. of Station Canteen Agra vide letter dated 01.12.1990 was only being shifted to CSD Canteen or it was a new substantive appointment on CSD side of the Canteen? Let us examine the two appointment letters side by side, it may look following: -
Tele Mil 25 Tele Mil 2024
Station Head Quarters Station Head Quarters
Agra Agra
1 Dec. 90 30 Apr. 92
585003/1/Q 585003/1/Q
Shri Mahendra Singh Shri Mohinder Singh
Son of, Sri Chand C/O Station CSD Canteen
House No. 52, North Arjun Nagar, Agra
Agra. APPOINTMENT IN CSD CATEEN
Provisional Appointment in the Non 1. It is to inform you that you have been CSD SEC Station Canteen Agra. appointed as Chowkidar in Station CSD Canteen Agra wef 01 May 92. Your pay
1. You have been provisionally will be Rs. 750/- per month.
appointed in Non CSD Sec of Station
Canteen w.e.f. 01 Dec. 90 as a
Salesman. Pay will be Rs. 500/ per
month. (BR Bhatia)
Col.
(BR Bhatia) Admn Comdt. (C1-I).
Col.
Admn Comdt. (C II). Copy to: -
Copy to:- Station CSD Canteen,
Station CSD Canteen Agra Agra
32. In the first, the subject is written "provisional appointment in the non-CSD SEC Station Canteen, Agra" whereas in the second, it is written the "appointment in CSD Canteen". Does these mean that 26 first one was only provisional appointment and the second was a substantive appointment? And the first one was in the non-CSD section of Station Canteen, Agra and the second was on the CSD Canteen? The main basis of earlier judgment of the Tribunal in OA No. 1565 of 1993 dated 06.09.1996 was these two letters. And the second letter mentioned appointment in CSD Canteen contra distinct to the provisional appointment in the non-CSD Section Station Canteen, Agra. It gives an impression that this was new non-provisional (?) appointment on the CSD side.
33. But from the monthly payments fixed in both the letters, it is clear that it is some sort of monthly wages establishment as it says that the pay of the applicant will be Rs. 750/- per month in the second appointment also. And it is clearly not a scale as given to a permanent CSD employee. So, from this document also, it cannot be inferred what is the nature of appointment of Shri Mahendra Singh in CSD Canteen. Its purport can only be inferred that the applicant was engaged as monthly rated employee. But certainly this second document also does not speak for itself. It does not clearly discloses as to under what capacity the said order was being passed by Col. B.R. Bhatia. Was he an authority under the Unit Run Canteen, as 27 the respondents intend to claim, or as an authority of the Defence Ministry, an authority of CSD ? It is next to impossible to decipher what was the real intent of this order ? Was it giving substantive appointment to the applicant to a CSD post or was it mere shifting him to physically work as CSD side of the canteen on deputation or on work assignment basis, but being paid from the Non CSD Section of Station Canteen, as was intended in the first order ?
34. But interestingly, the third letter, which is Annexure A-3 of OA, is much more damaging to the respondents. The said letter implied transfer and the subject written is "employment of staff in existing vacancies" and some minute is referred dated 15.12.1992 which is not placed before us and it is said that "Shri Mahendra Singh is remustered to summary clerk/salesman w.e.f. 01 Jan
93. Pay be adjusted accordingly". Again, Under the signature of Col. CPS Chauhan, officiating administrative commandant (C1-I). Here again document does not speak for itself.
35. Simple examination of these three letters make it clear that the authorities issuing these letters have not identified themselves as authority under Unit Run Canteen, distinct from the hierarchy in the defence establishment. Hence, from these documents the conclusion of the Tribunal 28 in OA No. 1565/1993that the applicant was working on CSD Side of the canteen and hence, his case was attracted by the CAT provisions and his OA was maintainable before them was obvious. But definitely the Tribunal in OA No. 1565/1993 did not go ahead to find out the nature of the applicant's employment and it has also observed that the services of the temporary employees cannot be terminated in the garb of simplicitor discharge when it actually is of penal nature in its order dated 06.09.1996. And that required that the applicant claiming anything more than what was clearly examined and found in OA No. 1565/1993, has to be proved conclusively by giving all evidences, if he asserts that he was in regular capacity employment of CSD and was working in CSD Canteen as CSD regular employee. Otherwise available evidence before us show that he was just on a monthly rated establishment paid from the regimental fund. The applicant has not filed any evidence apart from these few letters and his other representations dated 12.10.2008 or 15.11.2010 or 12.01.2011 or 25.05.2011. In those representations also he has not given any other evidence which shows his nature of selection and employment as being regular. He has failed to give any evidence if as per the Uma Devi judgment (supra), he fulfilled the criterion laid down in para 44 of the said judgment to get for himself all 29 the benefits and service conditions of a regular employee in the respondents' establishment.
36. Hence, before us there is nothing to substantiate the claim of the applicant beyond the point that yes, applicant was working on the CSD side but on what capacity whether he was regularly employed, irregularly employed, legally employed, illegally employed (?) or his nature of employment remained not established.
37. If the applicant has failed to adduce any primary evidence and shed light on these, the only inference can be that he has no other evidence in his favour and he is only relying on a finding which is given in the earlier Tribunal's order dated 06.09.1996 which relates to Tribunal's jurisdiction and not about the nature of employment of the applicant and his rights. Hence, we will have to believe the respondents that the applicant is an employee of Unit Run Canteen and he was being paid from the regimental fund and only incidentally he was working on the CSD side of the Canteen. If applicant has any contrary evidence in his favour, he is free to place them before the authority, who shall examine and ascertain the truth of the same and declare again afresh the nature of employment of the applicant and his service conditions.
30
38. We do not find any evidence that the applicant was being paid from any regular government fund. He could have placed before us some evidence on that. Further, if he was appointed in a regular manner by a constitutional scheme of public employment, he could have place some evidence before us regarding vacancy notification, selection process and their post and order of his appointment and service conditions etc. The applicant has failed to do so.
39. Hence, even though in earlier Tribunal's order his case was found to be maintainable before the Tribunal as he was working on the CSD side but his case for being regularized and recognized as CSD regular employee with all regular employment and benefits including pay scale, annual increment, promotions and leaves etc., is not established by the available material and evidence before us.
40. But, the document made available before us which is at Annexure A-1, A-2, A-3 and A-4 also show extreme callousness and negligence on the part of the authorities in issuing appointment orders without assigning the nature of appointment and terms of the appointment and even writing clearly in what capacity and authority such letters or 31 orders are being issued, which mixes private regimental appointments in Unit Run Canteen and public employment in the establishment of Defence Ministry (CSD). Hence, to that extent the respondents cannot absolve themselves from the responsibility of inculcating some legitimate (?) expectations in the applicant that he was a regular employee and he had been fighting his cause since 1996 at various judicial forums since long, when he came before the Tribunal first. By now, 28 years of his precious life is consumed by this hapless litigation, and his children and family's future is compromised due to this complicity, and for which the applicant has some case to claim damages and cost from the respondents both the department as well as the individual officers who committed such grave mistakes of being ambivalent, non-precise, non-speaking and bad in drafting, approving and issuing appointment orders as in Annexure - 1, 2 and 3, which only they themselves can understand and interpret.
41. further, if we examine the order of the Tribunal dated 06.09.1996, it is interesting to note that the respondents therein were following:-
"1. Union of India through the Chairman, Station Canteen (Station Cadre), Indian Army, Station Head Quarter, Cantonment Area, Agra.32
2. The Administrative Commandant / Incharge,Station Canteen, Indian Army Station Head Quarter, Agra."
42. Careful examination of the two respondents, it is clear that they are identified as Chairman Station Canteen (Station Cadre) and Administrative Commandant Incharge Station Canteen and not some authority under Ministry of Defence. Ministry of Defence was not a party therein.
43. Further, in the review also, Review Application 56 of 1997 in OA No. 1565 of 1993, the party was Union of India through Chairman Station Canteen, Station Headquarter, Agra. Even in Civil Contempt Application No. 98 of 1996 in OA 1565 OF 1993, Brigadier G.S. Grewal Chairman Station Canteen) Station Commandant, Station Head Quarters, Indian Army Cantonment Area, Agra and Colonel R.K. Budhwar, Administrative Commandant (Incharge Station Canteen), Station Head Quarter, Indian Army, Station Head Quarter, Agra. Both these authorities were under Station Canteen. Clearly, this order relied and the name of the parties identified by the applicant himself are part of this Station Canteen which is not CSD but Unit Run Canteen only. Conclusively, applicant very much knew from the day one that he is part of the Station Canteen and his service authority was the Chairman, Station Canteen (Station 33 Cadre), Indian Army Station Headquarter, Cantonment Area, Agra.
44. Even in the Civil Misc. Writ Petition No. 41936 of 2020, the party was Union of India through the Chairman Station Canteen, Station Headquarter, Agra and these facts were not either contested or disputed. If that is so, the applicant cannot later take a plea and point out this same case and say that he had any claim over job in the Defence Ministry on the CSD side.
45. But it is interesting to note that while challenging the endorsement dated 18.07.2007 when the applicant came 2nd time before the Tribunal in OA No. 921 of 2007, in his application the respondents had entirely changed and they were following:-
"1. Union of India through its Secretary, Ministry of Defence, New Delhi.
2. Station Commandant, Indian Army, Station Headquarters, Agra.
3. The Administrative Commandant, Indian Army Station Headquarter, Agra."
46. These facts and change in the name and nature of respondents have not been examined or have not been agitated by the either side nor our attention were drawn earlier to this; but they are self-explanatory that when applicant first time came to get himself reinstated he was 34 clear in his mind that he was working in Station Canteen (station cadre) and he wanted reinstatement. But he saw gold mine in observation of the Tribunal; where the Tribunal was only deciding whether his case is maintainable before it or not and it was not going into the nature of his appointment, and the Tribunal in OA 1565/1993 observed that as he was working on the CSD side, so his case was maintainable. And then later on, as after thought the applicant started agitating through OA 931 of 2007 to get all benefits as regular CSD employee. As if he was in regular employment of Ministry of Defence and he made the Ministry of Defence as a party, which certainly appears to be an afterthought, although it is not noticed and challenged by the respondents. In the present case also, if we see the parties impleaded as respondents, it is following:-
"1. The Union of India through the Secretary, Ministry of Defence, Government of India, New Delhi.
2. The Chairman/General Manager, C.S.D. Board of Administration, Adelphi, 119, Maharshi Karve Road, Mumbai
- 400020.
3. The General Officer Commanding, U.B Area, U.B Area Headquarters, Bareilly Cantt., Bareilly - U.P.
4. The Station Commander, Indian Army Station Headquarter, Agra - U.P.
5. The Administrative Commander, Indian Army Station Headquarter, Agra - U.P"
47. From the above, it is amply clear that although applicant had known his status as non-CSD monthly wage 35 employee from the beginning, but he had become bolder with certain observations in the Tribunal's order dated 06.09.1996 about his working on CSD side, and made the Union of India through Secretary, Ministry of Defence, Government of India as main party and CSD Board of Administration and General Officer Commanding as other parties in later proceedings. As the applicant himself has shifted his stand in the OA No. 1565/1993 to the OA No. 1565/1992 and this OA, which contradicts his case and puts hole in his claim to relief of being confirmed on the CSD side and to pay him the salary and other emoluments, allowances and benefits as admissible to such an employee with effect from 06.09.1996 in compliance of the Tribunal's order dated 06.09.1996 in OA No. 1565 of 1992.
48. Considering the foregoing facts and discussions, we have no doubt in our minds that the applicant fails to substantiate his case that he is a regular employee of Canteen Store Department selected through a constitutional scheme of public employment and having right to regular employment in the CSD Department and hence our answer to first two questions are in negative. Hence, we are clear in our mind that the C.A.T, Allahabad in its order dated 06.09.1996 passed in OA No. 1565/1993 only observed that the applicant was working on the CSD side of 36 the Canteen, but it neither inquired into nor has given any finding that the applicant is an employee of Canteen Store Department (CSD) and that his status and service conditions was that of the regular Defence Ministry employees of the CSD. Working in an organization and being an employee of the organization are two different and distinct aspect of employment. To prove that a person is the employee of an organization where he works, he has to show how he was appointed and at the time of appointment what was his assigned service condition and from which funds the employee was paid etc. Hence, we have no doubt in our mind that the applicant has failed to substantiate that he was a regular CSD employee and he was appointed in a regular post through the constitutional process of Public Employment, having right to a pay scale and other employments and benefits at par with other CSD employees.
49. There is a long catena of judgment about the employees of Unit Run Canteens including the judgment of Full Bench of Hon'ble Apex Court in Civil Appeal No. 3495/2005 - R.R. Pillai (dead) through LRs Vs. Commanding Officer HQ SAC (U) dated 28.04.2009 - (2009) 13 SCC 311 wherein doubting correctness of the view in Union of India Vs. Mohd. Aslam - 2001 (1) SCC 720, reference has been made to three Judges Bench where the 37 controversy lie within a very narrow compass. The issue was as to the status of an employee of Unit Run Canteen in Armed Forces, and after examining a catena of judgments, Hon'ble Apex Court decided that reference and answered by holding that the employees of Unit Run Canteens are not government servant. From the available records before us, it appears that the case of the applicant is no more than that of an employee of Unit Run Canteen, may be temporarily performing work on CSD side. But this practice of deputing non-CSD employees to CSD work is a bad practice, as it creates wrong precedence and should be discontinued forthwith. Hence, we pass following orders:-
(i) The applicant has failed to substantiate his case and we are unable to interfere with the impugned order and we are unable to give any of the reliefs claimed by the applicant and accordingly we dismiss this OA.
(ii) Respondent shall pay a token cost of Rs.
One Lakh only to the applicant for their ambiguous and non-speaking orders dated 01.12.1990, 30.04.1992 and 21.12.1992 which has caused unwarranted confusion and protracted litigation. This is one time compensation, only if the parties agree to close the case at this stage. But, if the applicant chooses to further agitate his case as per the liberty given in the para (iv) below, then he loses his claim to this one time compensation.
(iii) Further, Respondent No.-1 is directed to evolve a clear guidelines and standard operating procedure to keep the private affairs of Unit Run 38 Canteens (UPC) separate and distinct from government CSD and other establishments. It should be made clear that while dealing with any employment in (URC) authority issuing such order should clearly identify themselves as an authority under URC like "Chairman" or "Secretary" of URC; and clearly spell out the term of employment etc. Mixing and placing URC employee on CSD side shall be avoided, so that there is no confusion regarding private employment in URC and the government employment in the Canteen Stores Department (CSD), as in the present case.
(iv) The applicant is further given liberty and opportunity to place any further evidence if he has any evidence about the nature of his employment in terms of his selection, appointment, service condition etc.; which may shed light on his claim to public employment; to place it before the respondent no. 4 within 15 days of this order. The respondent No. 4 shall examine the same with the records available with them and pass necessary speaking order about the nature of employment and service condition of the applicant afresh in three weeks' time thereafter.
50. All associated Misc. Applications stand disposed off.
51. No order as to costs.
(Dr. Sanjiv Kumar) (Justice B.K. Shrivastava)
Member (A) Member (J)
Anand...