Unit Run Canteens are a creation by the Army and not a state within the meaning of Article 12:- Kerala High Court
Case Title:- Jayakumar and others Versus Union of India and others
Case No:- WP (C) No.2517 of 2020
Decided on :- 4th March 2024
Quorum:- Judge Basant Balaji
Facts of the case:
The petitioners in W.P.(C)No.25209 of 2020 are Unit Run Canteens (henceforth referred to as “URC”) personnel who work at the Mavelikkara extension counter and are managed administratively by Army Station Head Quarters, Pangode, Thiruvananthapuram. The Minister of Defense is in charge of the Canteen Stores Department (henceforth referred to as “CSD”), which oversees the URCs. Members of the Board of Control of Canteen Services (BOCCS) which includes the Defence Secretary, Secretary of Defence (Finance) and the Quarter Master General (QMG) are also members of the CSD. The current canteen was established in 1947, and the money needed for CSD to buy supplies for the trade was taken out of the Consolidated Fund of India. The petitioners are reliant on ex-servicemen or are themselves ex-servicemen. Based on a Standard Operating Procedure (SOP) provided by the responders, they joined the canteens. Following a probationary term, the petitions will be considered either permanent or temporary Workers. The petitioners claim that the respondents are attempting to force them out of their position and to be replaced by contractual staff members. The petitioners have filed this writ petition because they are upset about the same.
W.P.(C)Nos. 25202, 25209, 25213, 2517, 26222, 27386/2020, 22466, 23782, 27795, 29919, 30508, 30564, 30652, 30668, 30679/2021, 7461, 27478, 29383, 35026, 35173, 35231, 35246/2022 & 453,456, 13827, 17289/23 are the related cases. In these cases, the respondents are the same individuals as the petitioners, and they are employed at different extension counters. With the exception of the aforementioned cases, petitioners in W.P.(C)Nos. 1548 of 2023, 25814 of 2023, 25635 of 2023, and 16984/2023 have different requests. The petitioners in W.P.©No. 16984 of 2023 requested the following prayers:
Issue a mandamus writ ordering the fifth respondent to immediately transfer the petitioner’s responsibilities and duties as the assistant manager.
Issue a writ in the nature of mandamus ordering the fifth respondent to absolve the seventh respondent of all duties and responsibilities as Assistant Manager going forward.
Issue a writ in the nature of mandamus ordering the fourth respondent to launch an investigation into the complaints made by the petitioner on Exhibit P5.
State that the candidate designated as assistant manager is qualified to be given the responsibilities and tasks associated with the position.
Any other relief that the Honorable Court determines is appropriate given the case’s facts and circumstances.
The petitioners in W.P.(C) Nos. 1548 of 2023, 25814 of 2023, and 25635 of 2023.
Petitioner Contentions:-
Contention for the learned counsel of Appellant that units are required to obtain sanction for operating URC from the Sub-area Commander/Brigade Commander or Higher Formation Commander or their equivalents in the other two services. The formation Commander may sanction the opening of URCs of their formation headquarters after the sanction is obtained and a registration number is allotted to the URC by the CSD. In such cases, the URCs are authorized to purchase canteen stores from the CSD area depot on which they are dependent. Clause 3.5 deals with financial assistance/loans to URCs. It states that “to assist the URCs to improve their canteen facilities and to keep sufficient inventory, some funds are made available in the CSD budget every year which are disbursed as loans to URCs.” Loans are sanctioned to URCs up to 2 lakhs by the General Manager of the CSD and if it is more than 2 lakhs, the board of administration is empowered up to 5 lakhs; beyond 5 lakhs to 25 lakhs, it is to be sanctioned by the QMG and beyond the said amount, it is sanctioned by the Executive Committee of the Board over control of canteen service. Clause 3.13 of the guidelines deals with the units proceeding on the UN Missions. The said clause only deals with the establishment of the Units Run Canteen abroad on UN Missions. It only states that they are free to take additional interest-free loans from the Deputy Director General of Canteen Service Headquarters and such loans should be paid and repaid with a deposit from where the URCs are availed service of credit within five years.
Respondent Contentions:-
Contention for the learned counsel of Respondent was a counter affidavit is filed by the respondents. The 1st and foremost contention raised is that the writ petition is not maintainable as the Unit Run Canteens does not come under the definition of State. Three vital aspects and tests to determine whether an organization – institution, or body comes under the definition of other authorities are; i) Creation, ii) Finance, and iii) Control. As far as the first test is concerned, that is, creation, URCs are established in terms of provisions laid down in AO/19/2003/QMG. The canteen services directorate grants sanction to a unit to operate the URCs on the basis of recommendation of higher formation/CSD head office. The URCs are given sanctions on the basis of certain basic criteria. The creation of a unit run canteen arises out of the need for defense personnel posted in a particular unit /formation and not by any Act. But by an order from the Quarter Master General branch of the Army. It is not the creation of the constitution or parliament or a State Legislature. AO/19/2003/QMG is an army order and not a notification nor does it carry any statutory validity. Thus it is not a State, coming under Article 12 of The Constitution of India and therefore, the writ petition is not maintainable against the Unit Run Canteen. Since respondents have raised the contention that the primary question that requires to be considered is whether the Unit Run Canteen is under the State Government coming within the ambit of Article 12 of the Constitution of India or authority and whether the writ petition under Article 226 of the Constitution of India is maintainable before this court against the Unit Run Canteen. The said question has to be decided first.
Court Analysis and Judgement:-
The court stated that as far as the facts of this case are concerned, the Central Government has no administrative financial control over the Unit Run Canteens, and they do not have any public duty to perform. In such a case, no Mandamus can be issued to the respondent canteen. It can be safely inferred that URC is not a state or authority with the meaning of Article 12 of The Constitution of India. The canteen is not the creation of any statute or legislature. The Ministry of Defence has nothing to do with the canteen or its employees. The funds of the URCs are not provided by the Consolidated Fund of India and they are from the regimental Non-public fund or by loans from the CSD departments. There is no pervasive Control by the Government in the running of a canteen. As per the documents produced through the counter affidavit it can be seen that the canteen is a private establishment that provides necessary items such as groceries at a cheaper rate to the army personnel retired as well as widows. The salaries are paid from the profit earned from the sales. In view of the discussions made above, I am of the firm opinion that the Writ petitions are not maintainable As URC does not come under the definition of State under Article 12 of the Constitution of India, and therefore the writ petitions are dismissed as not maintainable. However, liberty is given to the petitioners to move to the appropriate forum for redressal of their grievance, if so advised.
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Judgement Analysis Written by – K.Immey Grace
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