CASE NO.: Appeal (civil) 921 of 1995 PETITIONER: UNION OF INDIA AND ANR. RESPONDENT: CHOTELAL AND ORS. DATE OF JUDGMENT: 08/12/1998 BENCH: SUJATA V. MANOHAR & G.B. PATTANIK JUDGMENT:
JUDGMENT
1998 Supp(3) SCR 449
The Judgment of the Court was delivered by
PATTANA1K, J. This appeal by Union of India is directed against the order
of the Central Administrative Tribunal, Bombay Bench, Bombay, dated
9.1.1994. The short question that arises for consideration is whether
Dhobis appointed to wash the clothes of the cadets at NDA, Khadakwasla and
are paid from the fund called ‘Regimental Fund’ can be said to be holders
of civil post so as to confer jurisdiction on the Central Administrative
Tribunal for issuing any direction in relation to their service conditions?
The Tribunal by the impugned judgment came to the conclusion that the
‘Regimental Fund’ from out to which Dhobis are paid their salaries gets
covered by both the Consolidated Fund of India through the grants-in-aid as
it is paid to the institutions under the military which have to be funded
and set up to ensure the various activities including social and welfare
activities. It further held that Regimental Funds are controlled and
audited by the Controller and Auditor General of Defence Account alongwith
other Public Accounts of the Government and as such the posts of Dhobis are
civilian posts connected with Defence conferring jurisdiction on the
Tribunal to redress the grievances. On merits the Tribunal taking into
account the fact that Dhobis are working for nearly 30 years in the Defence
establishment and yet are not covered by the Provident Fund Act and other
Government schemes issued the direction that the authorities of NDA may
prepare a scheme for appointment of Dhobis on permanent basis and put them
on regular footing as permanent government employee,
Mr. Mahajan, learned senior counsel appearing for the appellant contends
that in view of the nature of duties discharged by these Dhobis, the nature
of fund from which their salaries are paid, the nature of control that is
exercised by the authorities of the National Defence Academy over such
Dhobis the conclusion of the Tribunal that the posts are Civil posts is
wholly erroneous and the same cannot be sustained. According to Mr.
Mahajan, under Section 14(1)(a) of the Administrative Tribunals Act, 1985,
the Central Administrative Tribunal on land from the appointed day exercise
jurisdiction in relation to the recruitment, and matters concerning
recruitment, to any All India Service or to any Civil service of the Union
or a Civil post under the Union or to a post connected with defence or in
the defence services, being, in either case, a post filled by a civilian.
Dhobis engaged for washing clothes of the cadets do not satisfy any of
these pre-conditions so as to confer jurisdiction on the Central
Administrative Tribunal and, therefore, the impugned order of the Tribunal
is un-sustainable in law; Learned counsel appearing for the respondent on
the other hand contended, that the washing allowance payable to the cadets
being paid from the Consolidated Fund of India and the same being credited
into a fund called ‘Regimental Fund’ and Dhobis being paid from out of the
said funds, the Tribunal was justified in coming to the conclusion that the
Regimental Fund itself gets impressed with the character of the
Consolidated Fund and holders of post paid out of that fund in true spirit
and sense must be held to be holders of civil post under the Ministry of
Defence of the Union Government and, therefore, Tribunal gets the
jurisdiction to decide the service conditions: of the holders of such
posts: The learned counsel further contended that taking into account the
gross injustice meted out to such Dhobis who have been serving the cadets
for more than 30 years, the Tribunal rightly issued certain directions to
evolve a scheme for regularisation of such Dhobis and there is no
illegality with the order of the Tribunal so as to be interfered by this
Court under Article 136 of the Constitution.
In view of the rival contentions raised, the most crucial question that
arises for consideration is what is the nature of the post against which
the Dhobis get their appointment for discharging the duties of washing
clothes of the cadets? From the terms and conditions of the letter of
appointment issued to such Dhobis it is crystal clear that the appointments
cannot be held to be One against any civil post. On the other hand it
clearly indicates that the appointment is purely private payable out of
Regimental Fund, Initially these Dhobis were being paid at a particular
rate per cadet on the basis of actual number of cadets a Dhobi is required
to serve, but later on a monthly salary, no doubt, has been fixed for being
paid to such Dhobis. The terms of appointment, no doubt vest certain
control over such Dohbis on the Commandant of the Academy but nonetheless
such control cannot impress the post of Dhobis with the character of a
Civil post. It is also borne out from the record that each cadet is granted
a monthly Dhobi allowance and the said allowance is put into a fund called
‘Regimental Fund’ under the management of Commanding Officer of the
institution. At this stage it would be appropriate to notice some
provisions of the Defence Services Regulation which would give an idea as
to the characteristic of the Regimental Fund. Under Para 801 of the
Regulation Public Funds have been defined as such :-
“801 (a) Public Funds – Include all funds which are financed entirely from
public money, the unexpanded balances of which are refundable to Government
in the event of not being devoted to the objects for which granted, and
also
(i) unissued pay and allowances;
(ii) Office allowance fund; and
(iii) the estates of deceased men an deserters.”
Para 801 (b) defines ‘Regimental Fund’ to mean comprising all funds, other
than public funds maintained by a Unit. Rule 820 provides for
administration of such Regimental Fund and 820(a)clearly indicates that all
funds other than public funds as defined In Para 801 maintained by a unit,
which are financed either wholly or partly from public money. Regulation
further provides that the Commanding Officer acts as a trustee in relation
to the ‘Regimental Fund’ and is responsible that the funds are properly
applied with special reference to the object of the fund and for the
benefit of the personnel or unit as a whole.
In view of the characters of the Regimental Fund, as discussed above, we
have no hesitation to come to the conclusion that the said fund cannot be
held to be public fund by any stretch of imagination and the Dhobis paid
Out of such fund cannot be held to be holders of Civil post within the
Ministry of Defence so as to confer jurisdiction of the Central
Administrative Tribunal to issue direction relating to their service
conditions. It is of course true that the Commanding Officer exercises some
control over such Dhobis but on that score alone it cannot be concluded
that the posts are civil posts and that payments to the holders of such
post is made from out of the Consolidated Fund of India or of any public
fund under the control of Ministry of Defence.
In the aforesaid premises the contention of Mr. Mahajan, learned senior
counsel that the Central Administrative Tribunal has no jurisdiction to go
into the question of service conditions of such Dhobis has to be sustained
and consequently, the impugned order of the Tribunal has to be set aside.
We accordingly, set aside the impugned judgment of the Tribunal and dismiss
the O.A. This appeal is allowed, but, in the circumstances without any
order as to costs.