Rajesh Tiwari vs Union Of India & Ors.
2013 Latest Caselaw 4066 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No. 2768/2011

%                                                    10th September, 2013

RAJESH TIWARI                                        ..... Petitioner
                           Through:      Ms. Sriparna Chatterjee, Advocate.

                           versus

UNION OF INDIA & ORS.                                ..... Respondents
                   Through:              Mr. Amrit Pal Singh, CGSC

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.            Petitioner is an employee of CSD Canteen. Employees of CSD

Canteens are not employees of State or instrumentalities of State. This

aspect has been so held by a Division Bench of this Court in the case of

Shashi Kant & Ors. Vs. Union of India and Ors. in W.P.(C) No.7357/1999

decided on 23.7.2012. Paras 1,2,3 and 6 of the said judgment are relevant

and the same read as under:-

     "1.       Overruling the decision reported as 2001 (1) SCC 720
     Union of India v. Mohd. Aslam, in the decision dated April 28, 2009
     in C.A. No. 3495/2005 R.R. Pillai (dead) (Through LRs) v.
     Commanding Officer HQ SAC & Ors., the Supreme Court held that

W.P.(C) No.2768/2011                                              Page 1 of 4
   employees of Unit Run Canteens in the Armed Forces are not
  government employees and thus cannot claim such benefits as could
  be asked by Government employees. The Supreme Court held that
  only those persons whose salaries are paid from the Consolidated
  Fund of India could claim the status of Central Government
  employees. But the question whether Unit Run Canteens are
  instrumentalities of the State and in that context what was the status of
  the employees of the Unit Run Canteen, was left open.

  2.          Petitioners seek a mandamus to be issued to the Army
  Authorities to regularize their services as Grade-IV Civilian
  Employees of the Indian Army and to be paid wages accordingly.
       They allege that for distributing rations to the Air Force
    personnel, an Air Force Officers Ration Distribution System
    (AFORDS) has been put in place, officer in-charge whereof is a
    person in the rank of a Squadron Leader. Alleging petitioner No.1
    being appointed as a Store Keeper/Distributor of items and
    petitioners No.2 to 4 appointed to collect and distribute the rations,
    it is alleged that whereas petitioner No.1 was being paid ` 1,500/-
    per month, the other petitioners were paid ` 1,000/- per month as
    salary. It was pleaded that recognizing the master-servant
    relationship between the petitioners and the Indian Air Force, an
    official accommodation was allotted to petitioner No.1 for which
    rent was paid by him evidenced by the receipts, Ex.B collectively.

  3.          As per the respondents, and for which we may highlight
  that pleadings are a little sketchy in the counter affidavit, the position
  is that rations for Air Force personnel are brought at the respective
  stations and in respect of which transportation, neither petitioner has a
  role. At the Air Force Station, such rations which have to be delivered
  at the mess are so delivered and such rations which are to be delivered
  to officers within the precincts of the Air Force Station are so
  delivered. Pertaining to the rations which have to be delivered to
  officers living outside the precincts of Air Force Stations, it is the
  obligation of the officers to come to the Air Force Station and collect
  the rations. To facilitate easy collection, the Air Force Officers Ration
  Distribution System has been set into place, purely as a private
  venture by Air Force officers, who depute their personal staff,
  privately engaged, to receive the rations and as regards the Air Force
  Authorities, it only recognizes AFORDS as as a system to facilitate its
W.P.(C) No.2768/2011                                              Page 2 of 4
      officers receiving rations. It is stated that AFORDS is neither a society
     nor a body corporate. It is just a name given for convenience to a
     private system put into place by Air Force officers.
     6.         From the rival versions it emerges that AFORDS is a non-
     juristic entity. It is a private creation of Air Force officers who have
     been given accommodation outside the Air Force stations. These
     officers pool their resources and provide a transport and engage
     private help or depute their personnel staff, privately engaged, and for
     which apart from wages paid as domestic helps, some more many is
     collectively paid to fetch rations from the Air Force stations and
     deliver the weekly quota in the houses of the officers. The venture is
     purely a private venture. Merely because there is an interface with the
     Air Force Authorities would not mean that it is a venture having
     public character. The distribution system cannot be called an
     instrumentality of the State. It is not created by the State. It is not
     funded by the State. There is no deep and pervasive control of the
     State. No State function is performed by the Distribution System. The
     Distribution System did not take over what was therefore performed
     by the State."

2.             A learned Single Judge of this Court A.K. Sikri (as he then

was) has in the case of Layak Ram Vs. Quarter Master General & Ors.

1999 (81) DLT 395 also similarly held that employees of canteens in Army

Headquarter cannot file a writ petition as such employees are not employees

of a State or an instrumentalities of the State within the meaning of Article

12 of the Constitution.

3.             I do not find that the CSD Canteen is in any manner an

instrumentality of State because petitioner has not shown how there is

government funding with respect to such Canteens or how there is deep and

pervasive control of the government.

W.P.(C) No.2768/2011                                                Page 3 of 4
 4.           Counsel for the petitioner sought to draw the attention of this

Court to two documents filed at pages 24 and 27 of the rejoinder affidavit

and which documents are letters which are addressed to tax authorities,

however, I do not find anything in these letters which show that there is

government funding or all pervasive control of the government to make the

CSD Canteen an instrumentality of the State.

5.           Therefore, the CSD Canteen is not a State or an instrumentality

of State for a writ to be maintainable under Article 226 of the Constitution of

India.

6.           The writ petition is therefore dismissed, leaving the parties to

bear their own costs.




SEPTEMBER 10, 2013                             VALMIKI J. MEHTA, J.

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