ORDER
Mukesh Kumar Gupta, Member (J)
1. The relief prayed for reads as under:
(a) To call for the records and hold that the act of the Respondent was not justified in denying regularization to the Applicant in the services and further direct the Respondents to regularize the Applicant from the date of his successful completion of probation i.e. one year after the date of his joining; &
To further direct the Respondents to calculate and pay the arrears of salary granting increments from the date Applicant became eligible to be appointed on regular basis with all consequential benefits and interest @ 18% over the amount, besides, damages for the losses suffered by him and declare the action of Respondent as illegal and arbitrary; &
To further quash the process of recruitment/selection against the advertisement for the post of Sales Accountant/Technicians published in Hindi daily newspaper ‘Amar Ujala’ (Meerut News) dated 05.02.2006; and/or
To further direct the Respondents not to appoint any other person on the post of the Applicant till the services of the Applicant are regularized; and/or
Pass any other order or orders deemed fit in the circumstances of the case.
Admitted facts are as under:
2. Vide communication dated 9th December, 1996, respondents invited applicant to appear for interview for ‘temporary post of Salesperson’, scheduled to be held on 12th December, 1996 at1400 hours. Para-5 of it provided that: ‘terms and conditions of service will be intimated at the time of interview’. Applicant was selected after being interviewed and joined his duties as Assistant Salesperson w.e.f. 29th August, 1997 in the Canteen run by 510 Army Base Workshop, Meerut, which is a Unit Run Canteen (URC). In Union of India and Ors. v. Mohd. Aslam and Ors. Civil Appeal No. 1039-1043 of 1999, Hon’ble Supreme Court vide judgment dated 4th January, 2001, 2001 (1) SCC 720 was confronted with the issue whether this Tribunal had jurisdiction to entertain applications and decide the grievances of employees of URCs, which provide canteen facilities to the troops at Unit level. Applications were filed before this Tribunal by URCs employees claiming benefits as regular defence employees or at least as civilian employees serving under the Ministry of Defence stating that URCs are part of Canteen Stores Department and since Canteen Stores Department forms a part of the Government in the Ministry of Defence, there is no reason as to why URCs should not be held to a part of Ministry of Defence. This Tribunal at Jodhpur and Mumbai took the view that URCs are part of Defence establishment and consequently holder of a post in the management of such canteen must be held to be connected with the Defence Services. According to Union of India, URCs are operated by non-public fund and expenditure required to run the Unit Canteen is made out of profit earned by the Canteens itself and, therefore, so far as the personnel serving in such Canteens, there is no relationship of master and servant between the Government and the employees and consequently the applications before the Tribunal should be rejected. In Defence service, there are two types of Canteens, (i) Canteen Stores Department and (ii) Unit Run Canteen. Canteen Stores Department was in existence in this country even during pre-independence days and it has its Head Office and Base Depot in Mumbai with 33 Area Depots all over the country. These Area Depots are wholesale outlets, which serve URCs in their respective zones. The Canteen Stores Department, after independence from 1948 onwards functioned as a Department under the Ministry of Defence initially for 3 years on an experimental basis and later from 1950 it has been working on permanent basis. URCs under respective Commanding Officers in the three Services -Army, Navy & Air Force get their articles from the wholesale outlets in Area Depot of the Canteen Stores Department and at present there exists 3400 URCs. Said judgment also noticed that though funding of URCs is not made within the consolidated fund of India, but it is made out of Canteen Stores Department and this Department in its turn formed a part of Ministry of Defence. Earlier in 1995 Supp. (2) SCC 611, Parimal Chandra Raha and Ors. v. Life Insurance Corporation of India and Ors. Hon’ble Supreme Court was confronted with an issue whether the employees of different Canteens in different Offices of LIC were employees of the Corporation itself and Court evolved four principles. By applying said principles, Hon’ble Court concluded the status of the employees serving in the URCs as of Govt. service. However, as a matter of caution it was observed that by itself ipso facto would not entitle them to get all the service benefit available to the regular Govt. servant or even their counterparts serving in CSD Canteens. It would necessarily depend upon the nature of duty discharged by them as well as on the Rules and Regulations and Administrative Instructions issued by the employer. The Hon’ble Court further held that ’employees of the Unit-Run-Canteens will draw at the minimum of the regular scale of pay available to their counter parts in the CSDI’. It further directed Ministry of Defence, Union of India to determine the service conditions of employees in the URCs at an early date.
3. In pursuance of aforesaid directions, ‘Rules regulating the terms and conditions of service of civilian employees of Unit Run Canteen paid out of non-public fund’ were notified vide Ministry of Defence letter dated 28th April, 2003 which, as per para-1 (b) deemed to have come into face on 4th January, 2001. As per para 5 (b) all the employees who have completed one year of probation as on 04th January, 2001 were to be treated as permanent employees. Para-4 provides three types of URCs based on annual turnover and having regard to the profit earned. Classification of employees and the pay scales were detailed under Schedule ‘A’.
4. Prior to it vide communication dated 11th May, 2001, Quartermaster General Branch, Dy. Dte Gen. Canteen Services, Army Headquarters, New Delhi, requested all Command Headquarters to issue necessary instructions to all concerned ‘not to terminate services of civilian employees in URCs’. Subsequently vide communication dated 06th November, 2003, all Command HQrs were requested to issue necessary instructions to field Units under their command and control to formulate SOPs for URC employees in consonance with the aforesaid Supreme Court Judgment & Order to avoid any contempt of court proceeding. In response to Headquarters letter dated 10th April, 2003, Canteen Officer, 510 Army Base Workshop, Meerut on 22.04.2003 provided details of civilian employees in URC, namely, D.K. Sharma, Accts Clerk, S.D. Thakur, Salesman, Vinod Kumar, Asst. Salesman (applicant herein) and Santosh Singh, Counter Attendant. Against the last two names, it was stated that they were kept on daily wages and recommended that their services be terminated giving suitable combatants as replacement. Individual at serial No. 1 was stated to be over-age and hence cannot be appointed against regular vacancy. Permission to appoint Shri S.D. Thakur as Salesman was also sought. Immediately thereafter, with reference to same letter dated 10th April, 2003, vide communication dated 28th April, 2003, Canteen Officer, Lt. Col. Sanjay Dawar, took a diametrically opposite stand and against the columns of ‘authorized’, ‘held’, ‘surplus’ and ‘deficiency’ employees of URC report of nil was communicated.
5. Applicant’s grievance is that respondent No. 3, Lt. Col. (Canteen Officer) submitted a false report to the Station HQ Cell. Subsequent to framing of terms and conditions dated 28th April, 2003, he made a representation dated 2.12.2004 seeking regularization of his services and grant of new pay scale in terms of Hon’ble Supreme Court aforesaid judgment. Finding no response, another representation dated 28th Feb, 2005 was preferred pointing out that instead of implementing directions of Hon’ble Supreme Court, he was directed to work in MI Room, instead of URC, and further his salary for months of January and February 2005 had not been released. All India Defence Civilian Canteen Union also espoused his case vide representation dated 1st March, 2005. He also filed another representation dated 7.6.2005 highlighting respondents failure to implement Hon’ble apex Court’s order dated 4th January, 2001, followed by reminder dated 22nd September, 2005. Communication dated 16th November, 2005 (A/17) was issued conveying him that aforesaid terms and conditions are not applicable to him and reference was made to para 3 (a) of Army HQ letter dated 28.04.2003, which reads thus:
(a) These rules shall apply to all civilian employees of Unit-Run-Canteen paid out of Non Public Fund Account but shall not apply to any person engaged on daily wages or on casual employment or to those hired on a contractual basis whose conditions of service will be regulated by their appointment letters. These Rules shall also not apply to serving defence personnel who may for the time being be detailed to work therein in any capacity whatsoever in addition to their own duties.’
Para-4 of said communication dated 16.11.2005 described him to have been employed to work on ‘daily wages’, making him ineligible for consideration to be employed as a regular employee. Vide para-5, he was offered to send his willingness if he was ‘willing to continue to work on daily wages.
6. Shri A.K. Shukla, learned Counsel forcefully contended that plea of daily wager solely was raised by the respondents for the first time & communicated to him vide letter dated 16.11.2005 with the intention to harass and deprive him regularization. He had been selected for temporary post of Salesperson after qualifying the interview & hence there arises no question of his being treated as daily wager. Respondents also ignored the fact that he was working continuously & uninterruptedly since 29th August, 1997. Without assigning any reason, respondents terminated his services & that too by an oral order. He made representation dated 20/12/2005 stating therein that he was not absenting, but in fact was not allowed to enter the premises to resume his duties by the Canteen Officer. He was forced to remain away from his duties for quite some time without any letter in writing, nor was he paid the salary. Respondents issued another letter dated 02.01.2006 repeating their old story that benefits under the terms and conditions dated 29.04.2003 were not applicable. Under the coerced circumstances, he signed letter dated 14.02.2006 withdrawing his claims and representations submitted on different dates, and only then he was allowed to resume duties, giving a go-by to his past continuous service of 9 years. An advertisement appeared in the daily newspaper ‘Amar Ujala’, Meerut dated 05.02.2006 inviting applications for the post of Sales Attendant/Technician with the intention of terminating his services and finding suitable replacement. Respondents had issued neither fresh letter of joining nor allowed him to sign the Attendance Register, although he was on the roster of employees, which is evident from the receipts issued by Canteen from 10.02.2006 to 01.03.2006, establishing purchase of certain items by him.
7. In the above backdrop, learned Counsel vehemently contended that entire action of respondents smacks of malafide with sole aim to eliminate him from regularization & suggesting that he was only a daily wager and not a regularized URC employee. Moreover, such an approach is against the letter and spirit of judgment of Hon’ble Supreme Court in UOI v. Mohd. Aslam (supra) as well as Dharma Nand.
8. The terms & conditions of URC dated 28.04.2003 were challenged before this Tribunal vide OA No. 2084/2004, B.P. Bhardwaj and Ors. v. Union of India and Ors. and this Tribunal vide order dated 03.10.2005 disposed of the said OA with following observations:
the OA is disposed of directing respondents to constitute a committee immediately comprising Joint Secretaries of the Ministry of Personnel, Department of Expenditure, Ministry of Finance, and the Ministry of Defence, which shall consider the demands made in this OA in regard to the terms and conditions of service of the employees of the Unit Run Canteens …. This committee shall make detailed and reasoned recommendations on various terms and conditions. Respondent No. 1 shall consider the recommendations of this committee and have the terms and conditions issued under Article 309 of the Constitution of India….
The said order had been challenged by the Union of India by filing a Writ Petition before the Hon’ble Supreme Court, which was dismissed on 10.03.2006. Thereafter, Ministry of Defence issued order dated 18.09.2006 and constituted an inter-ministerial committee. Since aforesaid directions were not complied with Contempt Petition was preferred before this Tribunal, which is pending consideration. Prior to framing aforementioned terms & conditions, there were no regular system in the URCs for issuing any appointment letter to Canteen staff. Ld. counsel further forcefully contended that clause 3 (a) of AHQ letter dated 28.4.2003 was not applicable to URC employees, including the applicant, who have already completed one year of service prior to 4th January, 2001. Since his appointment was temporary and not casual or daily wages & further as he has already cleared one year probation period, therefore, he was deemed regular and his services could not have been terminated without any prior notice or establishing misconduct. His services have been terminated without following any lawful procedure & that too orally w.e.f. 01.06.2006. Learned Counsel also laid great stress that he cannot be replaced by a combatant or by a fresh civilian as per Army Order No. 584/73, particularly para 2 (C), which reads as under:
No Military personnel or free transport is to be used in the running of canteens. In J & K Area, however, the use of free transport is permissible.
As the Unit-Run-Canteen is located at Meerut, it is quite evident that no Military personnel could be used in running the Canteen as per the mandate of aforenoted Army Order. It was further urged that he made representation in June 2006 addressed to Dy. Dte. General Canteen Services, wherein he had stated that Canteen Officer of 510 Army Base Workshop URC (respondent No. 3) called him on 31.05.2006 and threatened him as to why he filed the case in the Court and on the next morning when he reported for duty as a routine, Canteen JCO did not allow him to discharge his duties and told him not to come in Canteen as his services have been terminated. No written notice or letter was issued in this regard till date. Learned Counsel pointed out that OA was filed on 10.04.2006 and, therefore, respondents’ action is not only punitive but smacks bias and malafides.
9. Respondents contested the claim laid stating that before the interview, terms & conditions of services were supplied in writing to all the candidates including applicant. It is further stated that: ‘no appointment letter was given in writing to the applicant’. As per the terms & conditions which were reproduced under para 2 – captioned ‘BRIEF HISTROY OF THE CASE’, it was stated that his appointment was purely temporary and he will be ‘on probation for 89 days’. Furthermore, he will be paid daily wages of Rs. 40/-. Since he remained absent w.e.f. 25.11.2005, vide letter dated 08.12.2005 he was informed that if he wanted to continue his duties on daily-wages, he may report by 15.12.2005, otherwise his services would no longer be required. Applicant was a daily-wager and if he was willing for the advertised post, he may appear for screening. Since he was not a regular employee of the canteen, he could be replaced either by a combatant or by a civilian employee. Keeping in view the organizational requirement, lack of enough work in the URC during a slack period and keeping applicant’s welfare in mind, he was detailed to perform duties in MI Room, which he performed ‘most willingly and without any protest.’ He worked in URC w.e.f. 09.2.2006 to 31.5.2006. The attendance register is kept with Canteen JCO who marked attendance and as such question of signing attendance register by a daily-wager did not arise. Applicant was allowed to purchase certain items from URC on sympathetic grounds, which aspect has been grossly misused. Applicant during his period managed to accumulate copies of official documents by unfair means without consent of URC officials. Shri K.R. Sachdeva, learned Counsel strongly contended that applicant was not entitled to regularization in terms of latest judgment in Secretary, State of Karnataka v. Umadevi .
10. We heard learned Counsel for the parties at length & perused the pleadings placed on record carefully.
11. The question which arises for consideration is whether applicant could have been treated as daily wager or he ought to have been treated as Govt. employee in terms of law laid down in Union of India v. Mohd. Aslam (supra). At the cost of repetition we may note that respondents’ clear & unambiguous stand in counter affidavit is that applicant was called for interview ‘for a temporary post of salesperson’. It is further stated that: ‘before the interview, terms and conditions of service were supplied in writing to all the candidates’. As a result, applicant was selected for the post in question. However, in the same breath they took totally opposite stand stating that: ‘no appointment letter was given in writing to the applicant’. Vide reply para-2, respondents further stated that nature of appointment was ‘purely temporary’ and he will be ‘on probation for 89 days’.
12. The question now arises is that can a daily wager be placed on probation? In our considered view, we have not come across any such incidence in service jurisprudence where a person appointed on daily wages was made to undergo a probationary period and that too of 89 days. We may also note with concern that no records of applicant’s appointment were produced before this Tribunal to justify the contention raised vide their reply. Para-3 of Army HQrs letter dated 28.04.2003, which are the rules relating to the terms & conditions of civilian employees of Unit-Run-Canteens paid out of Non Public Fund Account clearly & unambiguously stipulates that said rules shall apply to all civilian employees of URCs but shall not apply to any person engaged on daily wages or on casual employment or to those hired on contractual basis. Said rule is qualified with further requirement that condition of service of such persons ‘will be regulated by their appointment letters’. In other words, in case of daily wagers, casual employees and/or engaged on contractual basis, conditions of service have to be explicitly clear and regulated by their appointment letters. On the one hand, respondents’ stand is very specific, unambiguous and clear that he was interviewed for ‘temporary post of salesperson’, but on the other hand they described him as having been appointed on ‘daily wages’. The term ‘temporary post’ or ‘daily wager’ are two distinct and different, carrying different meanings. There is a vast difference between a person who is said to be holding a ‘temporary post’ or appointed on ‘daily wages’. As per respondents’ own regulations, the terms & conditions of daily wager/casual employment/engaged on contractual basis, have mandatorily to be regulated by their appointment letters. It is not the case of respondents that either in the year 1997 or any time thereafter, they had ever issued any appointment letter. On the other hand, as per reply para-1, specific stand taken by respondents is that ‘no appointment letter was given in writing to the applicant’. We may also note that pursuant to directions issued by Hon’ble Supreme Court in Union of India v. Mohd. Aslam (supra), respondents had framed terms & conditions of URCs employees on 14.09.2001, but the same were not approved by Hon’ble Supreme Court & therefore, another terms & conditions were issued on 28.04.2003.
13. Furthermore, respondents failed to explain as to how same authority, i.e. Shri Sanjay Dawar, Lt. Col, acting as Canteen Officer took a contrary and quite apposite view on 22.04.2003 and 28.04.2003. As noticed hereinabove, vide first communication, details of civilian employees working in URC at 510 Army Base Workshop, Meerut Cantt had been detailed, which included the applicant’s name, though vide latter communication against columns ‘authorized’, ‘held’, ‘surplus’ and ‘deficient’, remarks made were ‘nil’ against each of them. At no point of time, prior to 16.11.2005, applicant was ever informed that he was employed & treated to be working on daily wages. From a cumulative reading of all these aspects, it appears that all these have been done by said official only in order to deprive him the status of a Government servant as declared by Hon’ble Supreme Court in Union of India v. Mohd. Aslam (supra).
14. We may also note the fact that as per para-5 of Army HQrs letter dated 28.04.2003, all employees were placed on probation during their first year of service. On completion of said period, they were to be termed as permanent. Said para further prescribed that all such employees who completed one year of probation as on 04.01.2001, will be treated as permanent employees. It is not in dispute that applicant had been working with respondents since 29.08.1997 till the year 2005 uninterruptedly without any break. Despite various representations made by him from time to time, seeking extension of benefit of judgment of Hon’ble Supreme Court, nothing was communicated to him. It appears from materials placed before us that the controversy arose and harassment started when he persisted that his terms & conditions of service be regulated in terms of Hon’ble Supreme Court Judgment. It is at this stage Lt. Col. Canteen Officer, i.e., concerned authority took a somersault and communicated to him that he was employed as daily wager. From the sequence of events one could conclude that the respondents’ action was aimed & intended to frustrate the order passed by Hon’ble Supreme Court.
15. We also find substance and justification in applicant’s contention that issue raised in present OA is identical to one decided by Hon’ble Supreme Court in Dharma Nand and Anr. v. UOI and Ors. 2004 (10) SCC 609. In said Writ Petition also, two petitioners were appointed in the year 1988 as Salesmen on a consolidated salary, which had been enhanced from time to time and their services were terminated in the year 1998 stating that since they had completed 5 years tenure, their services were no longer required. The question arose whether employees working in Canteen Stores Department under Ministry of Defence could be treated as Government servants or not? Relying upon earlier judgments in Parimal Chandra Raha (supra) as well as Mohd. Aslam (supra), Hon’ble Supreme Court rejected UOI’s contention that petitioners were appointed as canteen employees on temporary basis against a fixed term and on completion of their term, their services were rightly terminated, as projected. Hon’ble Supreme Court held that: ‘if these petitioners should have been treated as Government Servants, the services could not have been terminated on the ground that their services were no longer required’. Accordingly, their termination was held to be illegal and they were ordered to be reinstated in service forthwith with all consequential benefits.
16. We may also note that it is well settled that fairness of procedure is a rule to ensure that vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase ‘that justice should not only be done but be seen to be done’ is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good administration. , Management of M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar and Ors.). The aforesaid law, in our considered view, is squarely applicable in the given facts.
17. On examining the issues raised in present OA on the touchstone of aforesaid judgements, we are of the considered view that Respondents’ action in treating applicant as Daily Wager is not justified. Furthermore, the plea of Respondents that he is not entitled to regularization keeping in view the law laid down in Uma Devi is misplaced and cannot be accepted for the reasons that in present case neither it was a back door entry nor was it an illegal appointment. On the other hand, he was selected after being interviewed, followed by due process of law. Vacancies were notified, applications were invited, antecedents were verified and thereafter he was selected for Unit Run Canteen. We have no hesitation to conclude that said judgment, under no circumstances, could be applied in the given circumstance.
18. On bestowing our careful consideration to all aspects of the matter, we do not find any justification and reasons to take a contrary view than the one as held in Union of India v. Mohd. Aslam as well as Dharma Nand and Anr. (supra). The mere fact that applicant accepted his engagement in February, 2006 would not change the basic issue raised in present OA. Respondents’ contention that he performed his duties in MI Room ‘most willingly and without any protest’ is an onslaught on his legal rights, particularly as per mandate of Hon’ble Supreme Court in UOI v. Mohd. Aslam. We cannot appreciate, but deprecate such a stand of respondents. A person working on such a insignificant post in a mighty Department like the Army, will not have any bargaining power & is bound to succumb to the actual ground realities. This precisely resulted on 14.02.2006. We have noticed that he indeed made a detailed representation highlighting harassment meted out to him by Canteen Officer, which remained undisputed.
19. In view of the law declared in Union of India v. Mohd. Aslam and Ors. (supra) that URCs employees ‘should be treated as Government employees from the date of the filing of the applications before Tribunal’ as well as making such officials entitled to draw minimum of the regular scale of pay available to their counterparts in CSDI, we hold that applicant has to be declared and treated as Government employee at least from the date of said judgment, i.e. 04-01-2001. Accordingly he would be entitled to minimum of regular scale from said date. We further hold that his so-called oral termination cannot be sustained in law. We are of further view that merely because he had submitted certain representations foregoing his claim would not be an impediment in issuing present directions particularly, as held in Dharma Nand and Anr. v. Union of India & as well as Mohd. Aslam.
20. In view of discussion made hereinabove, OA is allowed. Applicant having completed more than one year of service is deemed to be a Government servant w.e.f. 04.01.2001, consequently eligible for minimum of the pay scale with arrears of pay & allowances. However, he will not be entitled to get arrears for period he had not worked. Applicant should be reinstated forthwith. We further hold that if there is any delay in his reinstatement, he would be entitled to pay etc. till he is reinstated. There shall be no order as to costs.