JUDGMENT - AGARWAL ASHOK, J.:—By Writ Petition No. 2052 of 1986 the petitioner seeks to challenge the order dated 7th August, 1986 passed by the Chairman of the Food Corporation of India (FCI) Departmental Canteen, Sewri, Bombay 400 033 passed in the appeal of the petitioner whereby the petitioner was discharged from service.

2. The petitioner at the material time was employed in the canteen of the FCI Department in 'C' Shed, Sewri, Bombay-400 033 as a coupon clerk. On 30th October, 1985 the services of the petitioner were sought to be terminated with effect from 28th October, 1985 on the ground that the petitioner had participated in a strike on 28th October, 1985. On 16th November, 1985, the aforesaid order was withdrawn and the petitioner was placed under suspension. Being aggrieved the petitioner on 17th December, 1985 filed Writ Petition No. 2544 of 1985 challenging the order of suspension. On 13th January, 1986 Rule was issued and an interim order was passed directing the respondents to pay full salary to the petitioner pending the hearing and final disposal of the petition. Pending this petition, the petitioner was served with a charge sheet dated 28th January, 1986. A Departmental Enquiry was conducted by one Shri N.L. Gaonkar who, by his report dated 8th July, 1986 was pleased to hold that the petitioner had refused to accept the order dated 21st October, 1985 passed by the Hon. Secretary of the Departmental canteen stopping his increment with effect from 1st January, 1986, that the petitioner had participated in the strike on 29th October, 1985 and that he had refused to accept the show cause notice dated 29th October, 1985 advising him alongwith other employees to join duties within 24 hours. Placing reliance on these findings the Hon. Secretary, FCI Departmental Canteen by his order dated 7th August, 1986 demoted the petitioner from the post of coupon clerk to the post of bearer with immediate effect. It was provided in the said order that if the petitioner failed to report for duty as bearer within seven days from the date of receipt of that order he would be deemed to have refused to accept the said post and he would be discharged from service.

3. Being aggrieved the petitioner filed the Writ Petition No. 2052 of 1986. In this petition an interim order was passed on 29th August, 1986 wherein the statements of the petitioner were recorded to the effect that he would file an appeal against the impugned order dated 7th August, 1986. The respondent No. 2 was directed to hear and decide that appeal within one month of the same being filed. After the petitioner had filed the appeal in pursuance of the aforesaid statements, the Chairman, FCI Department Canteen by his memorandum dated 25th September, 1986 was pleased to call upon the petitioner to explain as to why the punishment of demotion should not be converted into one of discharge. On 8th October, 1986 the said Chairman was pleased to pass the impugned order discharging the petitioner from service. The petitioner thereafter applied for amendment of the petition for the purpose of challenging this order dated 8th October, 1986 which amendment was granted.

4. It may be mentioned that in view of the subsequent Writ Petition No. 2052 of 1986, which now seeks to challenge both the orders of demotion as also the order of dismissal from service, the Writ Petition No. 2544 of 1985 which sought to challenge the order of suspension will no longer survive. The Rule issued in that petition is, therefore, discharged with no order as to costs.

5. Mr. Advani, the learned Counsel appearing on behalf of the respondents raised a preliminary objection in regard to the maintainability of this petition. According to Mr. Advani, the petitioner was not an employee of the Food Corporation of India, the respondent No. 1 but was an employee of the FCI Departmental canteen. The appointment letter of the petitioner specifically provided that this was a non FCI purely temporary employment and did

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