Bombay High Court
Sukhadeo Vishwanath Garaje vs M/S Food Corporation Of India And Others on 2 November, 1988
Equivalent citations: [1989(59)FLR422], (1989)IILLJ277BOM, 1989MHLJ236
JUDGMENT
1. By Writ Petition No. 2052 of 1986 the petitioner seeks to challenge the order dated 7th August, 1986 passed by the Chairman of the Food Corporation of India (FCI) Departmental Canteen, Sewri, Bombay-400 033 passed in the appeal of the petitioner whereby the petitioner was discharged from service.
2. The petitioner at the material time was employed in the Canteen of the FCI Department in 'C' Shed, Sewri, Bombay-400 033 as a Coupon Clerk. On 30th October 1985 the services of the petitioner were sought to be terminated with effect from 28th October 1985 on the ground that the petitioner had participated in a strike on 28th October, 1985. On 16th November 1985, the aforesaid order was withdrawn and the petitioner was placed under suspension. Being aggrieved the petitioner on 17th December 1985 filed Writ Petition No. 2544 of 1985 challenging the order of suspension. On 13th January 1986, Rule was issued and an interim order was passed direction the Respondents to pay full salary to the petitioner pending the hearing and final disposal of the petition. Pending this petition, the petitioner was served with a chargesheet dated 28th January 1986. A departmental enquiry was conducted by one Shri N. L. Gaonkar who, by his report dated 8th July, 1986 was pleased to hold that the petitioner had refused to accept the order dated 21st October 1985 passed by the Hon. Secretary of the Departmental Canteen stopping his increment with effect from 1st January 1986, that the petitioner had participated in the strike on 29th October 1985 and that he had refused to accept the show cause notice dated 29th October 1985 and advising him along with other employees to join duties within 24 hours. Placing reliance on these finding the Hon. Secretary, FCI Departmental Canteen by his order dated 7th August 1986, demoted the petitioner from the post of Coupon Clerk to the post of Bearer with immediate effect. It was provided in the said order that if the petitioner failed to report for duty as Bearer within seven days from the date of receipt of that order he would be deemed to have refused to accept the said post and he would be discharged from service.
3. Being aggrieved the petitioner filed the Writ Petition No. 2052 of 1986. In this petition an interim order was passed on 29th August 1986, wherein the statements of the petitioner were recorded to the effect that he would file an appeal against the impugned order dated 7th August, 1986. The Respondent No. 2 was directed to hear and decide that appeal within one month of the same being filed. After the petitioner had filed the appeal in pursuance of the aforesaid statements, the Chairman, FCI Department Canteen by his Memorandum dated 25th September 1986, was pleased to call upon the petitioner to explain as to why the punishment of demotion should not be converted into one of discharge. On 8th October 1986, the said Chairman was pleased to pass the impugned order discharging the petitioner from service. The petitioner thereafter applied for amendment of the petition for the purpose of challenging this order dated 8th October 1986, which amendment was granted.
4. It may be mentioned than in view of the subsequent Writ Petition No. 2052 of 1986, which now seeks to challenge both the orders of demotion as also the order of dismissal from service, the Writ Petition No. 2544 of 1985, which sought to challenge the order of suspension will no longer survive. The Rule issued in that petition is therefore, discharged with no order as to costs.
5. Mr. Advani, the learned counsel appearing on behalf of the Respondents, raised a preliminary objection in regard to the maintainability of this petition. According to Mr. Advani, the petitioner was not an employee of the Food Corporation of India, the Respondent No. I, but was an employee of the FCI Departmental Canteen. The appointment letter of the petitioner specifically provided that this was a non-FCI purely temporary employment and did not carry any pensionary or gratuity benefits etc. According to Mr. Advani, the employees of the Food Corporation of India were governed by the Food Corporation Act, 1964 and the Staff Regulations, 1971 which are framed under Section 45 of the Act. As far as the employees of the canteen such as the petitioner are concerned, they were governed by the Rules regulating the conditions of service of canteen employees of the departmental canteens/tiffin rooms functioning in the Food Corporation of India. Even though the Food Corporation of India is a State as contemplated under Article 12 of the Constitution of India as held in the case of The workmen of the Food Corporation of India v. M/s. Food Corporation of India, reported in (1985-II-LLJ-4), the departmental canteen run by a canteen committee of the Food Corporation of India was not a State. The petitioner was not an employee of the Food Corporation of India but was an employee of the Departmental Canteen. Hence this petition was not maintainable under Article 226 of the Constitution of India and no writ can lie against the Deptl. Canteen of the Food Corporation of India.
6. In my judgment, there is considerable merit in the aforesaid contention and the same deserves to be upheld. A specimen appointment letter in respect of the appointed in departmental canteen is found at Annexure-2 to the Rules regulating the conditions of service of canteen employees of Departmental Canteen/Tiffin Rooms functioning in the Food Corporation of India. In paragraph 3 of the said appointment letter, it has been specifically mentioned thus :
"This is non-F.C.I., purely temporary employment and does not carry any pensionary or gratuity benefits etc."
It is not case of the petitioner that his appointment letter is different from the specimen found at Annexure-2. By letter dated 5th July, 1976 addressed by the Manager (R) of the Food Corporation of India to all Zonal Managers/Senior Regional Managers, Regional Managers/Joint Managers (PO) Madras, Calcutta, Bombay, Vizag of Food Corporation of India, they were informed of the model rules that could be adopted by the Canteen Managing Committee of Departmental Canteen/Tiffin Rooms with such modifications as may be considered necessary with the prior approval of the Head Office. This was with a view to evolve uniform model rules regulating the service condition of canteen employees serving in department canteen/tiffin room functioning in FCI. Section 1(2) of these Rules provides that these Rules with such modification as may be considered necessary by the local Managing Committee of the Departmental Canteens/Tiffin Rooms be made applicable to all employees of the Departmental Canteens/Tiffin Rooms. Section 2 provides for classification of employees into regular, temporary, casual and probationer. Section 3 provides for appointments of different categories of staff such as Senior/General Manager/Deputy General Manager, Deputy/Asst. Manager/Asst. Manager-cum-store Keeper and the other staff mentioned therein. Appointments of the staff mentioned in clause (1) are required to be made by the Chairman and the appointment of the other staff by the Hony. Secretary subject to such conditions as may be given by the Chairman. Letters of appointment containing the terms and conditions are to be issued to each employee as in Annexures I and II. Section 4 provides for probation whereas Section 5 speaks of termination of service. These Rules provide for all the terms and conditions of service such as hours of work, leave and payment of wages etc. They provide for acts of commission and omission constitution misconduct as also for punishment for misconduct. Punishment are classified as minor punishment and major punishment. These Rules also provide procedure for dealing with the cases of misconduct and for appeals against the punishment for misconduct.
As against this, the employees of the Food Corporation of India are governed by the Food Corporation Act, 1964 and the Staff Regulations, 1971 which have been framed in exercise of the powers conferred under Section 45 of the Act. Section 12 of the Act provides for the appointment of Secretary and other officers and employees of the Corporation. Section 23 provides for appointment of officers and their conditions of service. It provides that every person employed by a State Food Corporation under this Act shall be subject to such conditions of service and shall be entitled to such remuneration as may determined by regulations made by that Corporation under this Act. Section 44 empowers the Central Government to make rules by notification in the Official Gazette. Section 45 empowers the Food Corporation with the previous sanction of the Central Government by notification in the Official Gazette to make regulation.
7. In exercise of the powers conferred under Section 45, the Food Corporation has published the Staff Regulations, 1971. The said regulation are a self-contained code containing the conditions of service applicable to the employees of the Food Corporation of India. They provided for discipline and appeal regulations and these regulations are distinct from the Model Rules which governed the conditions of the canteen staff. Section 2 of the Staff Regulations, 1971 provides for general conditions of service including the conditions relating to appointments, appointing authority, mode of appointment, procedure for direct recruitment, procedure for promotion, reservation for Scheduled Castes, Scheduled Tribes and other backward categories, probation, seniority, transfers, termination of service and discharge and superannuation and retirement etc. Section 4 deals with conduct regulations which include provisions regarding misconduct. Section 5 deals with discipline and appeal regulations. It is thus clear that the employees of the canteen of the Food Corporation of India are not the employees of Food Corporation of India but of the canteen. The mode of appointment and conditions of service of the staff of the canteen are distinct from those of the employees of the Food Corporation of India. It will therefore have to be held that the staff employed by the canteen are not the employees of the Food Corporation of India. Consequently, it will have to be held that the present petition filed under Article 226 of the Constitution is not maintainable as the departmental canteen of the Food Corporation of India is not a State within the meaning of Article 12 of the Constitution of India.
8. Mr. Pakale, the learned Advocate appearing in support of the petition, placed strong reliance on the decision of the case of the Workmen of the Food Corporation of India v. M/s. Food Corporation of India. (supra) contended that the petitioners are the employees of the Food Corporation of India. In my judgment, the ratio laid down by the Supreme Court in the aforesaid case cannot be made applicable to the facts of the petitioner's case. In that case a settlement had been arrived at between the Food Corporation of India Workers' Union and the Management whereunder handling mazdoors who had initially been appointed by a contractor for handling storage and transit of foodgrains were specifically given the status of the workmen of the Corporation. A dispute arose when the management sought to resile from the said settlement and revert back to the contractual system without giving a notice of change as contemplated under Section 9-A of the Industrial Disputes Act. According to the union, the workmen had already been accepted as workmen of the Corporation and unless their service were legally terminated they could not be discontinued from service of the Corporation, and some other master imposed upon them. It was on these facts that the Supreme Court had held that the abolition of the contract system and introduction of direct payment system brought about a basic qualitative change in the relationship between the Corporation and the workmen engaged for handling foodgrains. On the disappearance of the intermediary contractor, a direct relationship of master and servant came into existence between the Corporation and the workmen. Any termination of service contrary to the provisions of the Standing Orders and the provisions of the Industrial Disputes Act, would be void. When workmen working under an employer were told that they had ceased to be the workmen of that employer, and had become workmen of another employer, namely, the contractor in this case, in legal parlance such an act the first employer constituted discharge, termination of service or retrenchment by whatsoever name called, and a fresh employment by another employer, namely the contractor. If the termination of service by the first employer was contrary to the well established legal position, the effect of the employment by the second employer was wholly irrelevant. The action of introducing so as to displace the contract of service between the Corporation and the workmen would be illegal and invalid and ab initio void. When once such workmen become the workmen of the Corporation it was not open to the Corporation to induct a contractor and treat its workmen as workmen of the contractor.
The Supreme Court in this case followed its earlier decision in the case of Dharangadhara Chemical Works v. State of Saurashtra, (1957-I-LLJ-477) in which it was held that the essential condition of a person being a workman within the terms of the definition is that he should be employed to do the work in that industry and that there should be, in other words, an employment of his by the employer and that there should be a relationship between the employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act.
9. It is apparent that the facts in the case of the Workmen of the Food Corporation of India (supra) are distinct from the facts of the present case. The employees of the canteen at no point of time were accepted as employees of the Food Corporation of India. Hence on the ratio laid down in the case of Dharangadhara Chemical Works (supra) it will have to be held that the canteen employees are not the employees of the Food Corporation of India.
10. Mr. Pakale, the learned Advocate, appearing for the petitioner relied upon the decision in the case of Royal Talkies, Hyderabad v. E. S. I. Corporation reported in (1978-II-LLJ 390) wherein it was held thus (pp 394-396) :
"The reach and range of the definition of "employee" in Section 2(9) is apparently wide and deliberately transcends pure contractual relationships. Section 2(9) contains two substantive parts. Unless the person employed qualifies under both he is not an 'employee'. Firstly, he must be employed "in or in connection with" the work of an establishment. The expression "in connection with the work of an establishment" ropes in a wide variety of workmen who may not be employed in the establishment but may be engaged only in connection with the work of the establishment. Some nexus must exist between the establishment and the work of the employee but it may be a loose connection. 'In connection with the work of an establishment' only postulates some connection between what the employee does and the work of the establishment. He may not do anything directly for the establishment. He may not do anything statutorily obligatory in the establishment. He may not even do anything which is primary or necessary for the survival or smooth running of the establishment or integral to the adventure. It is enough if the employee does some work which is ancillary, incidental or has relevance to or link with the object of the establishment. Surely, an amenity or facility for the customers who frequent the establishment has connection with the work of the establishment. The question is not whether without that amenity or facility the establishment cannot be carried on but whether such amenity or facility, even peripheral may be, has not a link with the establishment.
Merely being employed in connection with the work of an establishment, in itself, does not entitle a person to be an 'employee'. He must not only be employed in connection with the work of the establishment but also be shown to be employed in one or other of the three categories mentioned in Section 2(9). Clause (i) of the Section covers only employees who are directly employed by the principal employer. Even here, there are expressions which take in a wider group of employees than traditionally so regarded but it is imperative than employee who is not directly employed by the principal employer cannot be eligible under Section 2(9)(i). The language used in Section 2(9)(ii), however is extensive and diffusive imaginatively embracing all possible alternatives of employment by or through an independent employer. In such case, the 'principal employer' has no direct employment relationship since the 'immediate employer' of the employee concerned is someone else. Even so, such an employee, if he works (a) on the premises of the establishment, or (b) under the supervision of the principal employer or his agent "on work which is ordinarily part of the work of the establishment or which is preliminary to the work carried on in or incidental to the purpose of the establishment" qualifies under Section 2(9)(ii) If a cinema theatre manager who has no statutory obligation to run a canteen or provide a cycle stand but, for the better amenities of his customers and improvement of his business, enters into an arrangement with another to maintain a canteen and a cycle stand and that other employs, on his own, workers in connection with the canteen and the cycle stand, the Manager of the cinema theatre is liable for contribution as the principal employer of the workmen although they are engaged independently by the owner of the canteen or the cycle stand. An establishment like a cinema theatre is not bound to run a canteen or keep a cycle stand, nevertheless, a canteen service, a toilet service, a car park or cycle stand, a booth for sale of catchy film literature on actors, song hits and the like, surely have connection with the cinema theatre and even further the venture. All that the statute requires is that the work should not be irrelevant to the purpose of the establishment. It is sufficient if it is incidental to it. A thing is incidental to another if it merely appertains to something else as primary. Surely, such work should not be extraneous or contrary to the purpose of the establishment but need not be integral to it either. Much depends on the time and place, habits and appetites, ordinary expectations and social circumstances. The two operations namely, keeping a cycle stand and running a canteen are incidental or adjuncts to the primary purpose of the theatre within the meaning of clause (ii) of Section 2(9). The whole goal of the statute is to make the principal employer primarily liable for the insurance of kindred kinds of employees on the premises, whether they are there in the work or the merely in connection with the work of the establishment."
11. In my judgment, the aforesaid case can have no application to the facts of the present case. The Supreme Court in that case construed the definition of the "employee" as contained in Section 2(9) of the Employees' State Insurance Act. Section 2(9) provides :-
"employee" means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies, and
i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or
ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment, or..."
While considering the said definition the Supreme Court held that the reach and range of the definition is apparently wide and deliberately transcends pure contractual relationships. In this view of the matter it will have to be held that the ratio laid down in the aforesaid case cannot be made applicable to the facts of the present case.
11A. Mr. Pakale submitted that facilities of dearness allowance and provident fund have been extended by the Food Corporation of India to the canteen employees. It should therefore be held that the Food Corporation has accepted the canteen employees as its employees. Reliance was placed on the interofficial note No. 8/25(6)/79-80/RO dated 28th May 1985 issued by the Assistant Manager (HK. 1) RO and letter No. 20-6(14)/76 WF dated 5/12th January, 1988 of Dy. Manager (IR). By the aforesaid office note the Dy. Manager (Lab. and IR) was informed of the intimation issued to all District Officers to arrange payment of enhanced dearness allowance arrears to the canteen workers on lines with the dearness allowance payable to the workers of the Food Corporation. In my view the aforesaid office note, rather than supporting the view sought to be propounded by Mr. Pakale goes against it. The note in para 2 makes a specific reference to the fact that the canteen workers are employed by the respective canteen Management Committees and not by the Food Corporation and it was the primary responsibility of these committees to arrange payment of D.A. arrears and claim the permissible subsidy of 70%. A suggestion regarding making alternate arrangement to run the Poona Canteen by a private contractor on some nominal rent was also made by this office note. This note would make it clear that the canteen workers were never treated as the Corporation employees. Merely because the Corporation had directed payment of dearness allowance and had agreed to bear 70% of the burden would not make the canteen workers employees of the Corporation. The note specifically reiterates the fact that the canteen workers are not employees of the Corporation but of the Canteen Management Committee.
Similar is the position of the aforesaid letter dated 5/12 January 1988 which extends the Employees' Provident Fund facilities to the Department Canteen Workers by making payment of 90% subsidy. If the canteen workers were employees of the Corporation there would have arisen no occasion to offer subsidy as has been done but the entire burden would have been that of the Corporation. Hence the contention of Mr. Pakale based on the above office note and letter will have to be negatived.
12. Having held that the petitioner is not the employee of the Food Corporation of India, the petition is liable to be dismissed on the ground that the present petition is not maintainable under Article 226 of the Constitution of India. However, it may be desirable to deal with the other contentions raised in the petition, by the contending parties. Mr. Pakale submitted that the departmental enquiry conducted against the petitioner would stand vitiated on the ground that the same had contravened the principles of natural justice. According to Mr. Pakale, the Enquiry Officer had acted both as Prosecutor as also a Judge. Consequently his decision was biased. He had treated the Statements of witnesses on behalf of the Management as their examination-in-chief and thereafter offered the witnesses for cross-examination. He had himself cross-examined the petitioner and his defence witnesses. The decision arrived at by the Enquiry Officer was, therefore, biased and stood vitiated on the ground that they had been arrived at in contravention of the principles of natural justice.
13. In my judgment, there is no merit in the aforesaid contention and the same deserves to be rejected. I have perused the relevant departmental proceedings and the enquiry report and I find that the same does not suffer from any of the vices alleged on behalf of the petitioner. It is true that the Enquiry Officer has asked questions to the petitioner and his defence witnesses, some of which were in the nature of cross-examination. However, it is to be borne in mind that in domestic enquires the detailed procedure of recording evidence as followed in Courts need not be strictly adhered to. The rules of Evidence Act do not apply to departmental enquiries. Very often there is no separate management representative to conduct enquiry proceedings on behalf of the management and only witnesses are sent to the Enquiry Officer to depose regarding the incident. In such cases the questions to such witnesses are put by the Enquiry Officer and not by the management. This procedure does not violate the principles of natural justice. If the enquiry officer examined the witnesses without the assistance of the management representative then it does not show that he himself was the prosecutor when the record shows that a bonafide enquiry was held. When the enquiry officer himself examined and questioned the witnesses it is not objectionable so long as due opportunity is given to the delinquent to cross-examine them. It is competent for the Enquiry Officer to put questions to the witnesses to ascertain the real incident, However, when all the question of the defence witnesses are put by the Enquiry Officer and it shows that the workman had no chance to put questions then the principles of natural justice would be violated, It is the duty of the Enquiry Officer to elicit truth from witnesses. He is even entitled to cross-examine the witnesses for the same and this will not bring any bias. In most of the cases the enquiry officer is a layman and not conversant with the procedure of Court. If the enquiry records show that the enquiry officer in his own way tried to do justice to the delinquent and afforded him all the reasonable opportunity then the enquiry cannot be set aside on the ground that the enquiry officer examined the witness without any assistance from the management. The rules regarding questions as applicable in courts are laid down under Sections 141, 142 and 143 of the Indian Evidence Act. Such officers may be very competent in their jobs but may not be able to frame the questions in the manner in which they are framed in the Courts and, therefore, the ban on putting leading questions cannot be made applicable to such enquiries. The Evidence Act is not applicable to the departmental proceedings and the questions cannot be condemned on the ground that they were leading. It is only when the departmental proceedings reflect bias on the part of the enquiry officer that the enquiry can be said to be vitiated. Having perused the enquiry report in the present case, I am satisfied that it is a balanced report in regard to the evidence and material collected during the enquiry. Hence this contention of Mr. Pakale deserves to be rejected.
14. Mr. Pakale lastly contended that the Hon. Secretary, F.C.I. Departmental Canteen by his order dated 7th August, 1986 after accepting the report of the Enquiry Officer had passed an order demoting the petitioner from the Coupon Clerk to Bearer. Being aggrieved the petitioner had preferred an appeal and the Chairman, F.C.I Departmental Canteen by his order dated 8th October, 1986 had enhanced the punishment and passed an order discharging the petitioner from service. According to Mr. Pakale, the Chairman had no authority while exercising powers of appeal under Rule 21 of the Rules regulating the conditions of service of the canteen employees to enhance the punishment. Rule 21 provided right of appeal only to the employees and not to the management. No appeal had in fact been filed by the management. There was no provision for issuing notice of enhancement of punishment. Hence the notice of enhancement dated 25th September, 1986 was not justified. Consequently the order of enhancement of punishment was non est.
15. In my judgment, there is considerable merit in this contention of Mr. Pakale and the same merits acceptance. It is apparent that the relevant rules provided for appeal only for the employees and no appeal is provided for the management. There is also no provision for issuing notice of enhancement of punishment. Consequently, it will have to be held that the decision of the Chairman dated 8th October, 1986 enhancing the punishment from demotion to one of discharge from service is illegal and the same is liable to be quashed.
16. However, in view of my finding on the first issue that the present petition is not maintainable under Article 226 of the Constitution of India, the present petition will have to be dismissed.
17. In the result, the petition fails. Rule is discharged.
In the facts and circumstances of the case there shall be no order as to costs.