2001 Supreme(SC) 16

2001(1) Supreme 11
SUPREME COURT OF INDIA
(From Central Administrative Tribunal, Jodhpur)
G.B. Pattanaik & B.N. Agrawal, JJ.
Union of India & Ors. -Appellants
versus
M. Aslam & Ors. etc. -Respondents
Civil Appeal Nos. 1039-1040 of 1999
With
Civil Appeal Nos. 1041/1999 and 1042-1043 of 1999
Decided on 4-1-2001
Counsel for the Parties :
For the Appearing Parties : N.N. Goswami, V.A. Mohta, P.N. Mishra, Sr. Advocates, S.W.A. Qadri, Bipul Kumar, Mrs. Kiran Bhardwaj, M. Vijaya Bhaskar, Mrs. Anil Katiyar, R. Nedumaran, J. Buther, M.A. Chinnaswamy, J.K. Kaushik, Dr. Sumant Bharadwaj, Praveen Chaturvedi, Ratnesh Kumar, Mrs. Mridula Ray Bharadwaj, Smt. Subhadra, Chaturvedi, K.N. Rai, Advocates.

VERY IMPORTANT POINT
Employees of Unit-Run-Canteens of Armed Forces are employees of Central Government.

Headnote:(i) Administrative Tribunals Act, 1985-Section 14(1)(a)-Jurisdiction of Central Administrative Tribunal-Employees Unit-Run-Canteens of Armed Forces-Unit-Run-Canteens discharge duty of retail outlets after getting provision from whole sale outlet or depot of Canteen Stores Department CSD-CSD is part of Ministry of Defence-Officers of Defence Services have all pervasive control over Unit-Run-Canteens as well as employees serving therein-Employees of Unit-Run-Canteens are employees under Government-Administrative Tribunal would have jurisdiction to entertain application by such employees.

       (ii) Service Law-Central Government employee-Unit-Run-Canteens of Defence Services-Are employees under Government-Will draw at the minimum of regular scale of pay available to their counter parts in CSD-Union of India to determine service conditions of employees in Unit-Run-Canteens at an early date.

       For effective functioning of the defence services it is absolutely necessary to provide canteen facilities through out the country and while the Canteen Stores Department serve as whole sale 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 it its turn has formed a part of the Ministry of Defence, admittedly. 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. 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. Regular set of Rules have been framed determining the service conditions of the employees in 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 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 intent 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 Administrative Tribunal Act. (Para 3)

       But that by itself ipso facto would not entitle them to get all the service benefits as is available to the regular government servant or even their counter parts serving in the 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. We have come across a set of Administrative Instructions issued by he Competent Authority governing the service conditions of the employees of such Unit-Run Canteens. In this view of the matter, the direction of the Tribunal that the employees of the Unit-Run Canteens should be given all the benefits including the retiral benefits of regular government servants cannot be sustained and we accordingly, set aside that part of the direction. We, however, hold that these 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 and, we further direct the Ministry of Defence, Union of India to determine the service conditions of the employees in the Unit-Run Canteens at an early date, preferably within six months from the date of this judgments (Para 4)

       Notwithstanding the fact that we have recorded the conclusion that the employees serving under Unit-Run Canteens could be treated as Government servants, but that does not necessarily mean that the service conditions of such employees are governed by the Fundamental Rules. It would be open for the employer to frame separate conditions of service of the employees or to adopt the Fundamental Rules. There is no decision of the employer that Fundamental Rules would be applicable to such employees and in the absence of such decision the Tribunal was not justified to direct that the question of payment of subsistance allowance should be reviewed in accordance with the provisions contained in the Fundamental Rules. (Para 5)