Judgment:
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER
The question of jurisdiction of this Tribunal to deal with this case is to be decided first in this case. The applicants are functioning as civilian clerks/typists in the Southern Naval Command Officers Mess. Their claim is that when hitherto, there had been revision of pay scales corresponding to the pay revisions in the past in respect of other civilian employees in the wake of Pay Commission Recommendations, no such revision has taken place, when pay scale under the VI Central Pay Commission was revised.
2. Respondents have contested the O.A. According to them, the applicants cannot be treated as Central Government Servants, as they are engaged in the Mess as Civilian Clerks/typists under Southern Naval Command Officers Mess Fund (a Regimental non public fund maintained by INS Venduruthy). According to them, vide Annexure R-1, the terms and conditions of civilian employees through non public funds have been enumerated in Annexure R-1 issued on 29-05-2002, wherein it has been clearly stated, "Any legal dispute arising between the employee and employer will be submitted to jurisdiction of respective State Courts"
3. The applicants have filed their rejoinder stating that they are all working in the service in a Civil post under the Union Government connected with Defence in the Defence Services. Hence, in view of Section 14 of the A. Ts Act, they are paid by the Govt. through Non Public Fund which is a creation by the Central Government and thus this Tribunal has jurisdiction.
4. In their additional reply, the respondents have submitted that as early as in 1997 when one Shri Joseph Raju and certain others engaged from Non Public Fund approached the Tribunal vide OA No. 289/1997, the same had been dismissed, vide Annexure R-3. This order of the Tribunal was upheld by the High Court in O.P. No. 15225/1997, vide Annexure R-4. Thus, this Tribunal lacks jurisdiction in regard to the grievances of the applicants in this O.A.
5. Counsel for the applicant argued that the issue has been decided by the decision of the Apex Court in the case of Union of India vs Mr. Aslam and others (2001) 1 SCC 720 wherein it has been held that employees of the unit run canteens are subject to the jurisdiction of the Tribunal. As such, this Tribunal has jurisdiction.
6. Counsel for the respondents submitted that as long as the applicants are not paid from the consolidated funds of India but only from Non public Fund, they cannot be coming within the jurisdiction of the Tribunal.
7. Arguments were heard and documents perused. In the case of Union of India vs M. Aslam, the Apex Court has held as under:-
"3. In order to decide whether the employees serving in the Unit-run Canteens can be held to be government servants, it is necessary to find out the mode of appointment of such employees, rules and regulations governing the conditions of service of such employees, fund from which such salary is paid, and other factors which really determine the existence of relationship of master and servant between the Government and the employees. In the defence services there are two types of canteens; (1) Canteen Stores Department, and (2) Unit-run Canteens. The Canteen Stores Department was in existence in this country even during pre-independence days and it has its Head Office and Base Depot in Bombay with 33 Area Depots all over the country. These Area Depots are the wholesale outlets, which serve Unit-run Canteens in their respective zones. The Canteen Stores Department, after independence from 1948 onwards, function as a department under the Ministry of Defence initially for 3 years on an experimental basis and later from 1950 has been working on a permanent basis. We are concerned in the present case with the Unit-run Canteens and the status of the employees serving therein. As has been stated earlier, these Unit-run Canteens under their respective Commanding Officers in the three services army, navy and air force get their articles from the wholesale outlets in the area depot of the Canteen Stores Department and at present there exist 3400 Unit-run Canteens. Prior to the World War II the retail trade in the defence services was in the hands of the contractors. During World War II a regular cadre under Indian Canteen Code came to be formed called the Canteen Services (India) to handle retail trade in operational areas where contractors were not expected to go. After 1947, the organisation split into two: Canteen Stores Department (India) and Canteen Stores Department (Pakistan). The retail trade, however, was reverted to the contractors. But by the early fifties it was realised that the margin of profit between the wholesale price and the retail rate could be a welcome source of funds available to the commanding officers for welfare purposes. Thus, the concept of Unit-run Canteens was born, and contractors were driven out. When Major Gen. K.S. Thimmaya took over as Quarter Master General, he gave detailed thought to providing canteen facilities to the troops at the unit level. He found that retail outlets being in the hands of the unit canteen contractors, the margin between the wholesale price and retail price of goods went to the contractors whereas the amount in the hands of individual commanding officers of units in the army, navy and air force could be utilised for the welfare of the troops. The case was therefore, made out jointly for taking over of contractor-run canteens by units or formations, as the case may be, so that the profits from the sale of canteen stores could be retained within the unit. Contractors, no doubt, put up considerable objection to the aforesaid proposal but the Government agreed to the proposal of General Thimmaya and orders were issued. The concept of Unit-run Canteens, therefore, became an accepted doctrine though it took considerable period for implementing the change over. It goes without saying that from 1948 onwards the Canteen Stores Department (for short CSD ) functioned as a department under the Ministry of Defence, initially for three years on an experimental basis, and later from 1950 on a permanent basis and yet right up to 1977 the legal status of the same remained nebulous. For functional purposes, it was a commercial undertaking, but for actual practice it was treated as a department of the Ministry of Defence. The result was that the terms and conditions of employees presented various problems which quite often became a source of discontent and unpleasant employer-employee relations. As has been stated earlier, for effective functioning of the defence services it is absolutely necessary to provide canteen facilities throughout the country and while the Canteen Stores Department serve as wholesale outlet it is the Unit-run Canteens which serve as retail outlet. A set of rules regulating the terms and conditions of service of the employees of Unit-run Canteens have been framed which confers all-pervasive control over the employees with the authorities of defence services. Though the funding of the Unit-run Canteens is not made out of the Consolidated Fund of India but it is made by the Canteen Stores Department and this department in its turn has formed a part of the Ministry of Defence, admittedly. (Emphasis supplied)In Parimal Chandra Raha v. LIC of India the employees of different canteens in different offices of Life Insurance Corporation whether were employees of the Corporation itself was under consideration by this Court. This Court evolved four principles which are quoted hereunder:(SCC Head note)
"(i) Canteens maintained under obligatory provisions of the Factories Act for the use of the employees become a part of the establishment and the workers employed in such canteens are employees of the management.
(ii) Even if there is a non-statutory obligation to provide a canteen, the position is the same as in the case of statutory canteens. However, if there is a mere obligation to provide facilities to run a canteen, the canteen does not become part of the establishment.
(iii) The obligation to provide canteen may be explicit or implicit. Whether the provision for canteen services has become a part of the service conditions or not, is a question of fact to be determined on the facts and circumstances in each case.
(iv) Whether a particular facility or service has become implicitly a part of the service conditions of the employees or not, will depend, among others, on the nature of the service/facility, the contribution the service in question makes to the efficiency of the employees and the establishment, whether the service is available as a matter of right to all the employees in their capacity as employees and nothing more, the number of employees employed in the establishment and the number of employees who avail of the service, the length of time for which the service has been continuously available, the hours during which it is available, the nature and character of management, the interest taken by the employer in providing, maintaining, supervising and controlling the service, the contribution made by the management in the form of infrastructure and funds for making the service available etc."
Applying the aforesaid principle to the facts in the present case, it is difficult to conceive as to how the employees working in the Unit-run Canteens can be held to be not government servants, when it has emerged that providing canteen facilities to the defence service personnel is obligatory on the part of the Government and, in fact, these Unit-run Canteens discharge the duty of retail outlets after getting their provision from the wholesale outlet or depot of the Canteen Stores Department...... in the case in hand if the Canteen Stores Department forms a part of the Ministry of Defence and if their funds form a part of the Consolidated Fund of India and it is the said Canteen Stores Department which provides fund as well as different article through the retail outlets of Unit-run Canteens then the employees who discharge the duties of salesmen in such retail outlets must be held to be employees under the Government. The officers of the defence services have all-pervasive control over the Unit-run Canteens as well as the employees serving therein. A regular set of rules have been framed determining the service conditions of the employees in the Unit-run Canteens. The funding of articles are provided by Canteen Stores Department which itself is a part of the Ministry of Defence. The report of a Committee of Subordinate Legislation went into detail of the working conditions of the employees engaged in the Unit-run Canteens and categorically came to the conclusion that these employees are recruited, controlled and supervised by the rules and regulations made by the defence services although these have been given the name of executive instructions. The said Committee came to the conclusion that for all intents and purposes the employees in the Unit-run Canteens are government employees and should be treated as such. In the aforesaid premises, we are of the considered opinion that the status of the employees in the Unit-run Canteens must be held to be that of a government employee and consequently the Central Administrative Tribunal would have the jurisdiction to entertain applications by such employees under the provisions of the Administrative Tribunal Act. Civil Appeals Nos. 1039-40 of 1999 by the Union of India against the order of the Central Administrative Tribunal, Jodhpur Branch in OA No. 86 of 1995 accordingly stand dismissed."
8. The above would go to show that the funds for operating the unit- run-canteen are provided for by the C.S.D. which is in turn a part of Ministry of Defence. In fact in the very same judgment of M. Aslam, referred to the decision by the Apex Court of the case of Union of India vs Chotelal (1999) 1 SCC 554 wherein the Apex Court has held as under:-
"This appeal by the 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 who are paid from the fund called the "Regimental Fund"can be said to be holders of civil posts 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 of 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 Comptroller and Auditor General of Defence Accounts along with other Public Accounts of the Government and as such the posts of dhobis are civilian posts connected with the defence conferring jurisdiction on the Tribunal to redress their 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 Funds Act, 1925 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 a regular footing as permanent government employees.
2. Mr. Mahajan, learned Senior Counsel appearing for the appellant, contends that in view of the nature of the duties discharged by these dhobis, the nature of the 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 and from the appointed day exercises 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 the 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 preconditions so as to confer jurisdiction on the Central Administrative Tribunal and, therefore, the impugned order of the Tribunal is unsustainable 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 the 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 posts paid out of that Fund in true spirit and sense must be held to be holders of civil posts under the Ministry of Defence of the Union Government and, therefore, the 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 with by this Court under Article 136 of the Constitution.
3. 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 appointment 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 the Regimental Fund. Initially, these dhobis were being paid at a particular rate per cadet on the basis of the 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 dhobis 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 the "Regimental Fund" under the management of the 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 unexpended balances of which are refundable to the 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 and deserters."
4. Para 801(b) defines "Regimental Fund" to mean comprising all funds, other than public funds, maintained by a unit.
5. Para 820 provides for administration of such Regimental Fund and para 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. The 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.
6. 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 a public fund by any stretch of imagination and the dhobis paid out of such Fund cannot be held to be holders of civil posts within the Ministry of Defence so as to confer jurisdiction of the Central Administrative Tribunal to issue directions 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 posts is made from out of the Consolidated Fund of India or of any public fund under the control of the Ministry of Defence.(Emphasis supplied)
7. 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 OA. This appeal is allowed but, in the circumstances, without any order as to costs."
9. The above decision has not been upset in any subsequent judgments - rather reiterated in M. Aslam (supra) when the Apex Court has stated therein as under:-
" Mr. Goswami, the learned Senior Counsel appearing for the Union of India strongly relied upon the judgment of this Court in Union of India v. Chotelal 1 wherein the question for consideration was whether dhobis appointed to wash the clothes of cadets at NDA at Khadakwasla, who are being paid from the regimental fund, could be treated as holders of civil post within the Ministry of Defence. This Court answered in the negative because the regimental fund was held not to be a public fund as defined in para 802 of the Defence Services Regulation. Payment to such dhobis out of the regimental fund and the character of that regimental fund was the determinative factor."
10. Thus, the real test to arrive at as to whether an employee comes within the fold of Government servant and consequently is subject to the jurisdiction of this Tribunal, the acid test is whether the funds required in employing such individual are from consolidated funds (i.e. public funds) or non public funds. When the expenses are met from non public fund, notwithstanding the fact that the rules and regulations are framed and the employees are under the control of the Government Officers (here Commanding Officer, INS Venduruthy), the same would not bring such individual paid from Regimental (non public fund) within the purview of the A.T. Act. Hence, we are in respectful agreement with the earlier decision in the case of Joseph Raju in OA No. 289/2007 as upheld by the High Court and the decision in Chotelal (supra) also supports the case of respondents.
11. In view of the above, the Tribunal lacks jurisdiction and hence, the OA is dismissed on the point of jurisdiction. The time taken by the applicants in prosecuting the case in this Tribunal would however, be excluded for working out limitation in any other judicial forum.
12. No costs.