Uoi & Ors. vs Sh.Mohan Chander Joshi
2011 Latest Caselaw 2498 Del

*                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) Nos.22740-43/2005

%                            Date of Decision: 10.05.2011

UOI & Ors.                                                   .... Petitioners

                           Through Mr. Raghvendra Pandey, Advocate for
                                   Mr. M.K. Bhardwaj, Advocate

                                     Versus

Sh. Mohan Chander Joshi                                     .... Respondent

                           Through   Nemo



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.         Whether reporters of Local papers                 YES
           may be allowed to see the judgment?
2.         To be referred to the reporter or not?            NO
3.         Whether the judgment should be                    NO
           reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioners, UOI through the Secretary, Ministry of

Defence, South Block and Ors., have challenged the order dated 6th

October, 2005 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in OA No. 1827/2005 titled as „Sh.

Mohan Chander Joshi Vs. UOI through Secretary, Ministry of

Defence and Ors.‟, allowing the original application of the respondent

and setting aside the order of his termination and directing the

petitioners to reinstate the respondent in service with all

consequential benefits including back wages.

2. Brief facts to comprehend the controversies are that the

respondent filed an application before the Central Administrative

Tribunal, Principal Bench under Section 19 of the Administrative

Tribunals Act, 1985 seeking the quashing of order dated 19th August,

2005 terminating the services of the respondent without any inquiry

or show cause notice. The respondent had rendered regular and

continuous service as a salesman.

3. The respondent contended that National Defence College,

Ministry of Defence, which imparts in-service training to the officers

of Ministry of Defence, and also other ministeries, has a unit run

canteen which is under the canteen store department. The

respondent is alleged to be a graduate from Kumaon University and

was appointed as a salesman in the National Defence College(NDC)

on the basis of an interview. The respondent was placed on

probation for one month and his pay was fixed at Rs.1500/- per

month. According to the respondent, his regularization to the post of

salesman was dependent on his performance during the period of

one month from 1st March, 1997. After one month, seeing his

performance, the respondent was appointed as a salesman in the pay

scale of Rs.2000-200-3000 with effect from 1st April, 1997. The

respondent was also directed to get himself acquainted with the

procedure and maintenance of accounts in the canteen and for this

purpose, he was put on further probation of three months and after

the expiry of the said period and his depositing Rs. 2000/- as

security money with the canteen officer, he was appointed on regular

basis. The respondent asserted that at the time of filing the original

application, his pay was Rs.3750/-. His duties included, sale

counter duty, billing duty, data entry on computer, frisking at the

exit point etc. He also pleaded that he was allotted a one room

accommodation on sharing basis with effect from 4th September,

1997 and later on the room was allotted solely to him.

4. The respondent asserted that his performance was found to be

satisfactory, which was also appreciated in various assessments by

various officials and that he had been working on a regular basis.

5. The respondent contended that canteen employees are govt.

servants and relied on Union of India v. M. Aslam & Ors., (2001) 1

SCC 720.

6. The services of the respondent were terminated by order dated

19th August, 2005 on the ground that his services are no longer

required, which letter was received by the respondent on 22nd

August, 2005. The respondent challenged the order on the ground

that he had been holding the post of salesman of NDC canteen on

regular basis and he had not committed any misconduct and that

his services could not be terminated merely on the ground that his

services are no more required.

7. The original application was contested by the petitioners

contending, inter alia, that the decision of termination of the

respondent on the ground that his services were no more required

was not based on the decision of the Apex Court in the case of UOI

Vs. M. Aslam & Ors., 2001 (1) SCC 720.It was also contended that

the respondent is not a govt. servant and that the petitioners were

within their power in passing the order dated 19th August, 2005.

The petitioners asserted that the services of the respondent were not

regularized on 3rd April, 1997 as alleged by the respondent. The

petitioners further asserted that termination of the service of the

respondent was necessitated by the requirement of the organization

and in the interest of the National Defence College and that the

petitioners had exercised their power vide para (6), para (13) and

para (49) of the „Terms and Conditions of Service of URC Employees‟.

The petitioners admitted that termination of the service of the

respondent is not on account of misconduct and, therefore, the

procedure to inquire into his conduct was not followed.

8. The Tribunal, after considering the pleas and contentions of

the parties and relying on the decision of the Apex Court in UOI Vs.

M. Aslam & Ors. (2001) 1 SCC 720 held that canteen employees even

though paid from non public fund would be govt. servants. Reliance

was also placed on (2004) 10 SCC 609 Dharma Nand and Anr. Vs.

UOI, holding that employees of canteens under the Defence Ministry

are Govt. Servants. The Tribunal further held that since the

respondent had completed more than one year as on 1st April, 2001

under probation, he is deemed to be a permanent employee and to

dispense with the service as per the clauses of condition, the only

resort that could have been taken by the petitioner was to hold the

disciplinary proceedings. The non-holding of disciplinary proceedings

in the case of a permanent employee would be the denial of

reasonable opportunity. The Tribunal relied on the ratio of Mohd.

Aslam‟s case (supra) while noting that though the order has been

referred to a Larger Bench, however, unless the order is modified or

annulled, the ratio of the judgment of Mohd. Aslam still holds

precedent value under Article 141 of the Constitution of India and

thus it shall be applicable.

9. The petitioners challenged the order of the Tribunal on the

ground that URC canteen is a small canteen and the petitioner could

not be compelled to keep excess strength of its staff and since the

services of the respondent was not required, his service could be

terminated. The petitioners also contended that on completion of

one year service, the respondent could not have become a permanent

employee though he had completed his probation period as the

confirmation is made after due procedure and by a specific order.

10. The respondent, before this Court, filed a reply contending,

inter alia, that he was confirmed in the service and was also allotted

accommodation w.e.f. 4th September, 1997. Reliance was also placed

on „Rules Regulating The Terms And Conditions Of Services Of

Civilian Employees Of Unit Run Canteen Paid Out Of Non Public

Fund‟ framed by the Ministry of Defence, which came into force on

4th January, 2001. Reliance was categorically placed on Rule 5 of the

said Rules which is as under:-

5. CLASSIFICATION OF EMPLOYEES:

„b) All the employees who have completed one year of probation as on 04-January, 2001 will be treated as permanent employees.‟

Therefore, since the respondent had completed more than

three years of service as on 4-01-2001, he was also confirmed as a

permanent employee, as per the rules.

11. The respondent also contended that the petitioners have

admitted in para 4.9 of the reply filed to the original application that

"Terms and Conditions of Service of URC Employees" are being

followed in letter and spirit. It was also emphasized that the

petitioners never took the plea that the respondent is a temporary

govt. servant and therefore, the provisions of CCS (Temporary

Service) Rules, 1965 could not be invoked nor could the services of

the respondent be terminated at any time, by payment of one

month‟s salary without establishing their case.

12. Reliance was also placed on Dharma & Ors. (Supra), where

appointment was made on temporary basis in a canteen under the

Defence Ministry and after a period of five years, service was

terminated on the ground that the services were no longer required.

The plea on behalf of UOI was that termination was under Rules

framed for canteen employees. The Supreme Court had held that the

employees of canteen under the Defence Ministry are entitled to be

treated as Govt. Servant and that their termination on the ground

that their services are not required shall be illegal and in the

circumstances, directed the reinstatement of such canteen

employees with consequential benefits.

13. The present petition came up for hearing on 3rd May, 2011.

However, no one appeared on behalf of the parties. However, no

adverse order was passed and the matter was allowed to continue on

board in the category of „Regular Maters‟. The matter was again

taken up for hearing on 9th May, 2005 and again, no one appeared

on behalf of the parties. No adverse order was again passed and the

matter was allowed to remain on board in the category of „Regular

Matters‟.

14. Today, Mr. Raghvendra Pandey, Advocate, has appeared. The

learned counsel states that he is appearing on behalf of Mr. M.K.

Bhardwaj, Advocate. He further states that even Mr. M.K. Bhardwaj,

Advocate, has not been entrusted this brief. The learned counsel

appearing on behalf of the petitioner is, however, unable to assist

this Court and has declined to argue the matter on the ground that

he neither has the file nor does he know anything about the matter

and that he was instructed to appear by Mr. M.K. Bhardwaj,

Advocate. The learned counsel is also unable to give any satisfactory

explanation for non-appearance on 3rd May, 2011 and 9th May, 2011.

The learned counsel was asked to ask Mr. Bhardwaj to appear,

however, he has shown his inability on the ground that Mr.

Bhardwaj is unable to appear in the matter today.

15. In the circumstances, this Court has no other option but to

sustain the order of the Tribunal and dismiss the writ petition in the

present facts and circumstances. An interim order dated 7th

December, 2005 was passed in the writ petition staying the operation

of the order of the Tribunal dated 6th October, 2005 in OA

1827/2005. The stay order was modified by order dated 18th April,

2006 holding that under Rule 5 of „Rules Regulating Terms and

Conditions of Service of Civil Employees of Unit Run Canteen Paid

Out Of Non Public Fund‟, the respondent ought to be treated as

permanent and had thus held that the respondent will continue in

service subject to final result of the writ petition and the respondent

was directed to report for duty on or before 1st May, 2006. Since the

writ petition has been dismissed, therefore, in terms of order dated

18th April, 2006 passed in CM 14898/2005, respondent will continue

in service of the petitioners and is to be treated as a permanent

employee in accordance with the order of the Tribunal.

With these directions, the writ petition is disposed of.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MAY 10, 2011 rs