Bombay High Court
Anand Mistry And Ors vs Union Of India Through The Secretary And ... on 16 July, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:30405-DB
4-wp-9424-2019-Final.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9424 OF 2019
SHABNOOR Anand Mistry & Ors. ... Petitioners
AYUB
PATHAN V/s.
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2024.08.01
Union of India & Ors. ... Respondents
19:11:07 +0530
Mr. Ramesh Pandey a/w Ms. Beena Singh for
Petitioners.
Mr. A. D. Shetty, Senior Panel Counsel a/w
Mr.Aniruddha A. Garge, Senior Panel Counsel and
Ms. Rita K. Joshi for Union of India-Respondent
Nos.1 to 3.
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ &
AMIT BORKAR, J.
DATED : JULY 16, 2024 Oral Order: (Per Amit Borkar, J.)
1. By way of this petition Petitioners are challenging judgment and order dated 12th July 2018 passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai (hereinafter referred to as 'Tribunal') in Original Application No.702 of 2010 whereby the Petitioners' original application seeking relief of confirmation of permanency and status of Government servant in respect of their employment in the Training School Hostel Mess/Canteen of Respondent No.3 has 1 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 ::: 4-wp-9424-2019-Final.doc been dismissed.
2. The relevant facts for adjudicating the issue are as follows: The Petitioners claim to have been employed as mess boys in the Training School Hostel, Bhabha Atomic Research Center (BARC), Anushakti Nagar, Mumbai, for varying durations: less than three years for 8 applicants, less than five years for 3 applicants, between 5 to 10 years for 7 applicants, and over ten years for 2 applicants. During the pendency of the original application, applicants Nos. 7, 21, 23, and 24 left service. Notably, the Petitioners, through their unions, initiated conciliation proceedings under the Industrial Disputes Act of 1947 before the appropriate Government. However, the appropriate Government declined to refer the matter, concluding that the Petitioners were employed in a hostel funded by contributions from the trainees rather than public funds. Consequently, there was no direct employer- employee relationship, and the demand for regularizing the Petitioners' services could not be construed as an industrial dispute.
3. The Petitioners subsequently filed Original Application No. 702 of 2010 before the Tribunal, seeking relief of 2 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 ::: 4-wp-9424-2019-Final.doc permanency and conferment of government service status with consequential benefits. They asserted that Trainee Scientific Officers (TSOs) received a monthly stipend of ₹20,000 at the time of filing the original application, with a deduction of ₹2,000 for mess charges which used to be transferred to the mess fund. The Petitioners claim that the stipend was paid from the Consolidated Fund of India. They stated that the Training School Mess had been operational for over 40 years, with the Central Government providing free space, utensils, and infrastructure. They pointed to 50 permanent employees working in the mess/canteen as evidence of it being a permanent establishment of Respondent No. 3, managed by a committee of four senior BARC officers. The Petitioners noted that the Department of Atomic Energy was excluded from the definition of "industry" under the Industrial Disputes Act, per a notification dated 13th November 1985, making it impossible for Class IV employees to maintain an industrial dispute reference. After an unsuccessful attempt to resolve the matter through the Regional Labour Commissioner, the Petitioners turned to the Administrative Tribunal, arguing that this was the appropriate course of action since BARC is not considered an industry. 3 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 :::
4-wp-9424-2019-Final.doc They further argued that a status quo order protecting their services was in effect during the original application's pendency.
4. The Respondents contested the application before the Tribunal by filing a reply. They asserted that the Training School Hostel Mess is not a recognized canteen and that the Petitioners were engaged as daily-rated workers by the mess committee on its own accord, without adherence to recruitment rules or due procedure. The Respondents stated that TSOs are not regular BARC employees during the orientation program and that the mess committee does not represent BARC or the Department of Atomic Energy. They maintained that the daily operations, wage payments, and all other matters related to the mess were managed by the mess committee, which included individuals in charge of the Training School Hostel and a few Government Officials and BARC employees, in addition to their regular duties. Consequently, the Respondents contended that no employer- employee relationship existed between the Petitioners and Respondents. They further explained that the mess fund is privately maintained in a separate bank account, funded by 4 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 ::: 4-wp-9424-2019-Final.doc TSO contributions and payments for catering services provided during meetings, seminars, symposiums, and workshops. The Petitioners' wages were paid by drawing self- cheques from Punjab National Bank. The Respondents argued that the Petitioners did not meet the criteria established in the case of Secretary, State of Karnataka Vs. Umadevi & Ors., 2006 (4) SCC 1.
5. The Tribunal by the impugned judgment and order dismissed Original Application No.702 of 2010 holding that the Petitioners were recruited by the mess committee without following due procedure. There were no vacancies against sanctioned posts on the date of engagement of their services. The canteen facility is non-statutory canteen provided essentially to run the catering services to the trainees on self- supporting basis. There is no evidence to show that leave has been officially sanctioned by the Respondents nor any other material was placed on record to show that the management and control of mess was by the Respondents.
6. The Petitioners thereafter filed review application which, too, was dismissed by the Tribunal. The Petitioners have, therefore, instituted the present writ petition challenging 5 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 ::: 4-wp-9424-2019-Final.doc judgment and order dated 12th July 2018 passed in Original Application No.702 of 2010 and the judgment dated 5 th April 2019 passed in Review Application No.23 of 2018.
7. The learned Advocate for the Petitioners submitted that the Training School Hostel facility, operated and managed by BARC, benefitted Scientific Officers selected through public advertisements, followed by a written test, interview, and verification of their educational qualifications. Their appointment orders are issued in the name of the President of India. The training school hostel has been in operation for over 40 years. The trainee officers receive a monthly stipend of ₹40,000, from which ₹2,000 is deducted for the mess bill and transferred to the mess fund. The Respondents provide canteen facility's infrastructure. The Petitioners were protected during the pendency of the original application before the Tribunal. Therefore, he submitted that the Tribunal should have allowed the application and declared the Petitioners as permanent employees of the Respondents.
8. Conversely, the learned Advocate for the Respondents submitted that the mess/canteen in question is an unrecognized canteen supervised by a mess committee on a 6 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 ::: 4-wp-9424-2019-Final.doc self-supporting basis. The mess fund is a private fund maintained in a separate bank account. Contributions are made by the TSOs, who are not regular employees of BARC, and additional payments are received for catering services provided during meetings, seminars, workshops, etc. The appropriate Government, in refusing to refer the industrial dispute, held that the Training School Hostel is funded by trainee contributions rather than public funds. The mess is managed by a management committee. Hence, there is no direct employer-employee relationship between the parties. Therefore, according to the Respondents, the present dispute should be decided in accordance with the legal principles established by the Hon'ble Apex Court in the case of Umadevi (Supra).
9. The rival contentions fall for consideration.
10. At this stage, it is necessary to note that the Petitioners in support of their case relied on the judgment of the High Court of Madras in Writ Petition No.12315 of 2004, wherein the Court in its decision dated 12th August 2007 directed regularisation of employees of similar canteen functioning at BARC/ Department of Atomic Energy Center, Kalpakkam. 7 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 :::
4-wp-9424-2019-Final.doc However, the Apex Court in an appeal arising from said judgment in the case of Union of India Vs. S. Raj, reported in 2020 SCC OnLine SC 784, in paragraph 5 held as under:
"5.From the materials brought on record, it is clear that the respondents were working in the canteen which was being run by the Canteen Management Committee. There are no materials on record to indicate that respondents were ever appointed by Government of India in any capacity. There is specific pleading on behalf of the Union of India that no funds were granted by the Government for maintaining the canteen or any grant for running the canteen. The canteen has been run by the Canteen Management Committee from the revenue generated by sales and the respondents, who were employees of the Canteen Management Committee, were not the employees of the Government of India nor they were being paid any emoluments by the Government of India and Government of India had no control or any obligation to the canteen staff. In so far as the case of S.E. Kuppan is concerned, it has been submitted that S.E. Kuppan was already under the employment of Union of India as a casual labourer and he was granted temporary status by order dated 24.04.1998 and thereafter he was regularised. The order dated 24.04.1998 brought on the record as Annexure P- 5 includes the name of S.E. Kuppan on serial no. 7, who was referred to as casual labourer who has granted temporary status w.e.f. 21.04.1998. The case of S.E. 8 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 ::: 4-wp-9424-2019-Final.doc Kuppan was thus entirely different. He was casual labourer on the rolls of Government of India, Bhabha Atomic Research Centre and was granted temporary status and regularization. There is no material on record to indicate that at any time the respondents were engaged as a daily labourer or casual labourer or in any other capacity by the Government of India. It is clear that there was no master and servant relation between the appellants and the respondents. Before the Tribunal and the High Court the plea was raised by the appellants that they have not been employed by the appellants in any capacity, no direction can be issued for regularization but both Tribunal and the High Court had not adverted to the aforesaid pleadings and has directed for consideration of regularization. The respondents not being engaged by the appellants in any capacity, no direction can be issued for consideration of their regularization. The submission of the learned counsel for the respondents that other 19 persons were regularised, there is no material on record to indicate that 19 persons were regularised were similarly situated to the respondents. This Court, in this appeal, on 21.01.2008 has stayed the implementation of the impugned judgment."
11. In our opinion, the facts of the present case are analogous to those in the case decided by the Supreme Court. Here, too, the Petitioners were employed in a canteen 9 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 ::: 4-wp-9424-2019-Final.doc managed by a canteen committee. There is no evidence on record to indicate that the Petitioners were appointed by respondents Nos. 1 to 3 in any capacity. Furthermore, there is no evidence showing that respondent No. 1 disbursed any funds or grants for the maintenance or operation of the canteen. The canteen is managed by the committee using revenue generated from contributions made by the TSOs, who are not regular employees of respondent No. 3, and from payments received for catering services rendered during meetings, seminars, and workshops. The Petitioners' wages are paid through self-drawn cheques from Punjab National Bank or via ECS. The Petitioners do not receive any emoluments from the Government of India, which has no control over or obligation towards the canteen staff. Additionally, there is no evidence to suggest that the Petitioners were engaged as daily wage or casual labourers by the Government of India. Moreover, the Petitioners failed in their attempt to refer the dispute under Section 10 of the Industrial Disputes Act, 1947, wherein the appropriate Government found that the Training School Hostel is funded by trainee contributions and not by public funds. Hence, there is no direct employer-employee relationship between the 10 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 ::: 4-wp-9424-2019-Final.doc parties.
12. The Supreme Court, in the case of Umadevi (Supra), held that the executive, or the Court, in appropriate cases, has the right to regularize an appointment made following due procedure. Even if a non-fundamental element of the process or procedure has not been followed, cases involving irregular appointments of duly qualified persons in duly sanctioned vacant posts can be considered. Employees who have continued to work for 10 years or more without the intervention of court or tribunal orders can have their regularization of services considered on merits in light of the principles settled by the Supreme Court.
13. In the present case, there is no evidence that the Petitioners were employed by respondents Nos. 1 to 3 against duly sanctioned vacant posts by following due process of law. It is also undisputed that the Petitioners failed to provide material evidence showing that the canteen in question is a statutory or recognized canteen.
14. On overall consideration of the facts and circumstances of the matter, in our opinion, the impugned judgment passed by Tribunal does not suffer from any error apparent on the 11 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 ::: 4-wp-9424-2019-Final.doc face of record nor can the judgment be termed as suffering from material illegality. Therefore, there is no merit in the petition.
15. The writ petition, thus, stands dismissed. No costs.
16. All pending interim application(s), if any, stand disposed of.
(AMIT BORKAR, J.) (CHIEF JUSTICE) 12 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 06/08/2024 01:12:53 :::