CHAIRMAN CANTEEN Vs. RAJ SINGH
LAWS(DLH)-2007-1-15
HIGH COURT OF DELHI
Decided on January 25,2007

CHAIRMAN CANTEEN, HQ DELHI AREA Appellant
VERSUS
RAJ SINGH(RETD.) Respondents

JUDGEMENT

P.K.BHASIN, J. - (1.) By way of this writ petition under Articles 226 and 227 of the Constitution of India the petitioners are seeking setting aside of the order dated 9th September, 2005 passed by the Central Administrative Tribunal, Principal Bench, New Delhi(hereinafter referred to as "the Tribunal") in O.A. No. 1819/2005 whereby the tribunal allowed the petition of respondent no. 1 Lt. Col. Raj Singh(retd.) who had challenged the termination of his services as Manager, Non-CSD Canteen by the petitioners herein with effect from 18th August 2005. The tribunal while setting aside the termination order dated 30th July, 2005 directed reinstatement of the respondent no. 1. Feeling dissatisfied with the decision of the tribunal the petitioners have approached this Court for its reversal.
(2.) The relevant facts leading to the filing of the petition under Section 19 of the Administrative Tribunals Act, 1985 before the tribunal by the respondent no. 1 are as under: (a) After his retirement from Indian Army, the respondent No. 1 applied for the post of Manager in (Non-CSD) Station Canteen. He was interviewed by the Selection Board and on being found suitable was appointed as Manager in the Station Canteen(Non-CSD) at Delhi Cantt. with effect from 1st August 2003 by an appointment letter dated 28th July 2003. (b) By a letter dated 21st August 2003, terms and conditions of his appointment were communicated to the respondent No.1 by the petitioners wherein it was stated that he was to be on probation for a period of one year which could be extended to two years, if considered appropriate. The Chairman of the Station Canteen's Management Committee had the right to terminate his services without assigning any reason after giving one month's notice or pay and allowances in lieu thereof. It was also stated in the said letter that the respondent No. 1 was liable to serve in any of the Unit Run Canteens within the Command if the circumstances so warranted. The respondent no. 1 was to be bound by the rules and instructions contained in the HQ Delhi Area Standing Orders dated 1st April 1987. (c) After the expiry of first year, the tenure of the respondent no. 1 was extended upto 31st January 2005 by the petitioners by a communication dated 15th July 2004 which was given in response to his application dated 28th June 2004 and then it was further extended upto 31st July 2005 in response to his application dated 11th January 2005 by the petitioners-communication dated 8th February 2005. Every time the tenure of the respondent no. 1 was extended, he was required to sign a fresh contract document. (d) When his services were no longer required no further extension was granted to the respondent no. 1 and the petitioners vide their communication dated 30th July 2005 terminated his services with effect from 1st August 2005 by tendering one month's salary as per the terms and conditions contained in his initial appointment letter. (e) The respondent no. 1 made a representation dated 31st July 2005 to the petitioners requesting for continuation of his services for a further period of six month's or one year. (f) On getting no response the respondent no. 1 made another representation dated 03-08-2005 requesting for the same relief of extension of his services but the petitioners did not accede to his request and, in fact, did not even give any reply to his representations. (g) The respondent No. 1 filed a petition under Section 19 of the Administrative Tribunals Act, 1985 before the tribunal on 23rd August 2005 with a prayer for quashing the termination order dated 30th July, 2005 and for his reinstatement in service. (h) The respondent no. 1 had claimed in his petition before the tribunal that the termination of his services without assigning any reasons and without affording any opportunity to him to show cause was resorted to by the petitioners with a view to appoint other persons of their own choice who did not even fulfil the eligibility criteria for the said post. It was also pleaded by the respondent no. 1 that as per para 3(c) of the Rules and Regulations applicable to the Civilian Employees of Unit Run Canteens paid out of non public fund, the superannuation age was 60 years . He had also claimed that his performance was excellent and that is why instead of extending the probation period from one to two years he was allowed to continue in the service on regular basis. (i) The petitioners herein had opposed the claim of the respondent no. 1 before the tribunal, inter-alia, on the grounds that Non-CSD Canteen, for which the respondent no. 1 was appointed as Manager as per the laid down rules, regulations and directions from the Head Quarters, was a private shop run by Civilian Contractors on contract basis and the same had nothing to do with the Canteens run by Canteen Stores Department(CSD) and, therefore, the Rules applicable to the Unit Run Canteens were not applicable to the employees of Non- CSD Canteens. It was also claimed by the petitioners in their counter affidavit before the tribunal that on the completion of one year of probation the tenure of the respondent no. 1 was extended for a period of six month's and then it was further extended for another six month's whereafter the contract was not extended. It was also pleaded that in an identical case, the Delhi High Court had refused extension of service upto the age of 60 years even to those ex-Army Officers who were appointed in the Unit Run Canteens on the ground that their appointments were contractual in nature. It was further claimed that the action of the Management in not extending the tenure of respondent no. 1 herein and terminating the same by paying one month's salary to him was in accordance with the existing Rules and the respondent no. 1 had accepted the payment without any protest. (j) In his rejoinder the respondent no. 1 herein had refuted the stand taken by the petitioners herein in their counter affidavit and it was claimed by him that there was no difference between the CSD and Non-CSD Canteens and the Management of the Non-CSD Canteens was also under the control of the present petitioners and salaries of the employees of Non-CSD Canteens also were paid out of non-public fund and, therefore, the employees of Non-CSD Canteens were governed by the Rules regulating the terms and conditions of service of civilian employees in the Unit Run Canteens as per the order dated 7th April 2004 of the petitioners herein. The respondent no. 1 had also claimed that he had been, in any case, working for month's together as Manager of CSD Canteen also. He also claimed that he had protested the termination of his services on payment of one month's pay vide his representation dated 31st July 2005. (k) The Tribunal by its judgment dated 9th November, 2005 allowed the petition of respondent no. 1 herein and while holding that he was not a contractual employee and was, in fact, to be treated as an employee of a Unit Run Canteen ordered his reinstatement with all consequential benefits. It is against this order of the Tribunal dated 9th November, 2005 that the present writ petition has been filed.
(3.) The learned counsel for the petitioner submitted as follows: (a) The petitioners are running two different kinds of Canteens, namely, CSD Canteens the employees of which on completing one year of probation are considered as regular employees if their service is continued and Non-CSD Canteens for which there has never been any provision of regularization of service of the employees after a period of one year of service, whether on probation or otherwise. (b) In respect of CSD Canteen employees, Rules and Regulations governing the conditions of service of the employees were framed on 28th April 2003 pursuant to the directions of the Hon'ble Supreme Court in a case of Union of India and Ors. Vs. M. Aslam 2001(1) SCC 720, in which the employees of CSD Canteens(Unit Run Canteens) had claimed their status as Government servants and various service benefits which were available to the Civilian Employees in the Ministry of Defence which was controlling the CSD Canteens and whose employees were being paid out of non-public funds. As far as Non-CSD Canteens are concerned no Rules were prepared since there was never any intention of treating Non-CSD Canteen employees as regular employees of the Government and they were always treated as contractual employees. (c) The appointment of respondent no. 1 was, in fact, a contractual appointment pursuant to the Government's decision to rehabilitate ex-Army Personnel whose age of retirement is less than that of civilian employees and, therefore, respondent no. 1 could not be considered as a regular employee or a Government servant. (d) Even though there were rules governing the conditions of service of Civilian Employees of Unit Run Canteens(CSD Canteens) which were paid out of the non-public funds but no rules have been prepared for the Non-CSD Canteens since there was never any intention of treating Non-CSD employees as regular employees and consequently they have always been treated purely contractual employees. Therefore, the services of respondent no. 1 being purely contractual in nature his contractual appointment could be brought to an end at any time by the petitioners as per the terms of the appointment although his services were, in fact, terminated on the expiry of full contractual period. (e) Every time the contractual service period of the respondent no. 1 was extended a fresh contract was signed by him without any objection or a claim of regular status and when his services were no more required the same were terminated with effect from 1st August 2005 by paying him one month's salary as per the terms and conditions of his contractual appointment. (f) The non-CSD Canteens were being run by civilian contractors on contract basis and were like private shops and had nothing to do with the Unit Run Canteens and the rules applicable to their employees are not applicable to non-CSD Canteen employees.;


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