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Bakthavatsalam, J.—All these Writ Petitions are filed by Salesmen, Sales Assistant-cum-Packer, and Cycle Mechanic who were working in
the Canteen in Tamil Nadu and Kerala Sub-Area in Madras, against the orders of termination dated 16-12-1991 and 15-12-1992.
Since the facts of all these cases are similar, except the service put in by each of the Writ Petitioners, suffice it to state the facts in Writ Petition
No. 2472 of 1992 which are as follows:
The Petitioner has been working as Senior Salesman in the Tamil Nadu and Kerala Sub-Area C.S.D. Canteen at Madras and the said canteen is
being run by the Tamil Nadu and Kerala Sub-Area which is under the control of the Commander, the Second Respondent herein. The Petitioner
herein has been working in the canteen for the past 15 years. The stores, goods, articles etc. in the canteen are meant to be sold only to the army
personnel, ex-servicemen and not to general public. It is alleged in the affidavit that there are about twenty persons working in the Army Canteen
including the Manager, that a proposal was being considered to remove the civilian employees in the Unit-Run-Canteens and to substitute ex-
servicemen in the place of the civilians. But that idea was given up on the representation made by the All India Defence Civilian Canteen
Employees'' Union to the Ministry of Defence. It is alleged in the affidavit that the Canteen has a sales turnover of about Rs. 20 Lakh per month,
that it serves about 4,500 card-holders in addition to serving officers and transients who are also entitled to make purchases in the canteen like
others and that though the staff-employed were insufficient the Respondents, for various reasons best known to them, sought to terminate without
any notice to the employees. It is also alleged in the affidavit that the employees are governed by the Standing Orders for the Sub-Area and that
Clauses 37-C, 52-C, 52-D, and 55-E(ii) or (iii) of the Standing Orders for the Sub-Area speak about the mode of running the canteen. It is also
stated that on 12-2-1992, the Canteen Officer suddenly came into the Canteen premises, that he took six bottles of rum which was in possession
of the Petitioner and that he seized them. It is also stated that the Petitioner was called upon by the first Respondent and that he was served with an
order of termination of services on untenable charges. It is also stated that no show-cause notice was given, no explanation was called for and no
enquiry was conducted. The Petitioner also alleges in the affidavit that the order of the first Respondent in terminating the service of the Petitioner is
illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. It is also stated by the Petitioner in the affidavit that the Respondent
sought to terminate the services of the Petitioner without even asking for an explanation, that the services were terminated at the whims and fancies
of the first Respondent and that the action of the Respondent in terminating the services of the Petitioner is violative of the principles of natural
justice. It is also alleged in the affidavit that no explanation has been asked from the Manager, who would be better person to give a detailed report
on the functioning of the Canteen and that the Respondents contemplated to remove the civilians from service but fearing publicity they have
adopted such unconstitutional and arbitrary methods without any justification by removing the Petitioner and others summarily under some pretext
or other.
The facts of other cases are almost similar. The Petitioners in W.P. No. 18464 of 1991 were working as Salesmen and Sales-Assistant-cum-
Packer having put-in 7 years and 24 years respectively. The Petitioners in W.P. Nos. 2473 and 2474 of 1992 were working as Salesman and
Cycle Mechanic having put-in five years and 2-1/2 years service respectively. The grounds raised by the Petitioners against the orders of
termination are almost similar except that the Petitioner in W.P. 18464 of 1991 raised the plea that Article 21 of the Constitution of India is also
violated. It is also stated that the impugned orders of termination were passed all of a sudden, throwing out the Petitioners in the streets.
A counter affidavit has been filed in W.P. No. 2472 of 1992 on behalf of the Respondents and similar counter affidavits have been filed in other
cases also. It is stated in the counter affidavit that the only point that arises for consideration in these cases is that whether the Writ Petitioners are
entitled to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. It is pointed out in the counter affidavit
that the Petitioners are not in Government Service and that they are not defence personnel. It is also claimed in the counter affidavit that Sub-Area
Canteen is a Welfare Organisation run by tie officials as a measure of Social Service and that the service in the organisation is non-government
service. It is also stated in the counter affidavit that even if it is contended to be service matter pertaining to civil servant, the proper forum is
Central Administrative Tribunal and that the Petitioners cannot raise such an issue before this Court in this Writ Petition. It is also pointed out in the
counter affidavit that the employees of canteen stores department are civil servants in defence department and that in the instant case, the Qanteen
is a Social Welfare Organisation though in name they have the same semblance of Canteen Stores Department. It is also stated that it is a private
institution run in accordance with the standard operating procedure framed by the department from time to time. It is also stated tint the records
maintained by the Administration will reveal the output quality of work of the Petitioners and that since the Petitioners have failed to carry on their
duties their services were terminated. It is also claimed in the counter affidavit that mere supervision of commander over social welfare organisation
does not help the case of the Petitioner It is also stated in the counter affidavit that the Respondents have acted strictly in confirmity with Standing
Operating Procedure. It is also claimed in the counter affidavit that the impugned orders have been passed invoking para 36(a) of Standing
Operating Procedure and that the Petitioners cannot have any grievance against the impugned orders. It is also claimed that the Petitioners cannot
invoke the extraordinary jurisdiction under Article 226 of the Constitution of India as the ''Canteen Stores'' will not be a State under Article 12 of
the Constitution of India. It is also stated that the Petitioners'' services are governed by Standing Operating Procedure and that the Procedure
prescribed therein had been followed.
When the Writ Petitions came up for final hearing, Mr. C. Krishnan, the learned Additional Central Govt. Standing Counsel appearing for the
Respondents contends that the Writ Petitions are not maintainable as it cannot be said that the Tamil Nadu and Kerala Sub-Area CSD Canteen is
a State under Article 12 of the Constitution of India and that if it will come under Article 12 of the Constitution of India, the Petitioners cannot raise
the grounds on the basis of violation of Articles 14, 16 and 21 of the Constitution of India which are basically to fundamental rights enshrined in
Part III of the Constitution of India. The learned Additional Central Government Standing Counsel drew my attention to the Regulations which are
issued under the Authority of India. It is also stated that these Regulations are promulgated under Defence Service Regulations under paras 584
and 585. It is also stated that the Regulations for the Army, being non-statutory, are supplemental to relevant statutory provisions, wherever they
exist, and do not supplant them The learned Additional Central Government Standing Counsel took me through various provisions of the Standing
Operating Procedure, especially paras 15, 16, 17, 18, 19, 35 and 36 and contended that the Petitioners cannot avail of the remedy under Article
226 of the Constitution of India, that if they are aggrieved their remedy lies elsewhere i.e. before the Central Administrative Tribunal if they are so
desired. Further the Learned Additional Central Government Standing Counsel argues that it is only a voluntary welfare association and that it
cannot be termed as a State for the purpose of Article 12 of the Constitution of India and relies upon the pronouncement of the Supreme Court in
Chander Mohan Khanna Vs. The National Council of Educational Research and Training and other[OVERRULED], and the decision of the Full
Bench of the Bombay High Court in The Shamrao Vithal Co-operative Bank Limited and another Vs. Padubidri Pattabhiram Baht and another, .
Learned Counsel for the Respondent also contends that each Welfare Association is running a Canteen and that Ex-servicemen are employed
therein. So the main plank of contention submitted by Mr. C. Krishnan, the learned Additional Central Government Standing Counsel appearing
for the Respondents is that no Writ will he. However, Mr. C. Krishnan, the learned Additional Central Government Standing Counsel for the
Respondents is not able to defend the impugned orders on merits, except stating it is a condition of service under a contract, and the orders have
been passed in pursuance of para 36 of the Standing Operating Procedun.
Mr. K. Govindarajan, the learned Counsel appearing for some of the Petitioners contends that it cannot be said that the Tamil Nadu and Kerala
Sub-Area CSD Canteen is not a State under Article 12 of the Constitution of India and that it is a part of Canteen Stores Department. Learned
Counsel also refers me to the appointment orders which had been issued by the Welfare Association. According to the learned Counsel, in so far
as the Head Quarters has got the control, it is pan and parcel of the Canteen Stores Department. Learned Counsel also relies upon the decision of
the Supreme Court in Radha K.K. Harde v. Union of India 1986 I S.C.C. 400 wherein the Supreme Court was concerned with whether Canteen
Stores Department is an ''establishment'' under Ministry of Defence. The learned Counsel also relies upon the decisions in Ajay Hasia and Others
Vs. Khalid Mujib Sehravardi and Others, and in B.S. Minhas Vs. Indian Statistical Institute and Others, . Learned Counsel also refers to the
decision of Kerala High Court in N.C.C. Group Unit Run Canteen (CSD) Employees Association v. The Group Commander, NCC Group Head
Quarters Calicut O.P. 2899 of 1989 dated 12.10.1989 and the learned Counsel himself is not able to say whether Article 12 of the Constitution
was considered in that case. According to the learned Counsel, the Tamil Nadu and Kerala Sub-Area CSD Canteen is a State under Article 12 of
the Constitution of India and the orders of termination are bad in law. The learned Counsel relies upon the decisions in Delhi Transport
Corporation Vs. D.T.C. Mazdoor Congress and Others, and in Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, for the
proposition that para 36 of the Standing Operating Procedure has not been followed though it is a non-statutory order.
Mr. G. Jawaharlal the learned Counsel appearing for the Petitioners contends that it is not the case of the Respondents that the Tamil Nadu
Kerala Sub-Area Canteen is a Registered Society or a Company, that even assuming that the Tamil Nadu and Kerala Sub-Area CSD Canteen is
a registered society or a company in so far as the funds flow from Military Department and the Department being a military officer, a Writ will lie
against the impugned orders which have been passed arbitrarily in this case.
In reply, Mr. C. Krishnan, the learned Additional Central Government Standing Counsel appearing for the Respondents contends that the
Tamilnadu and Kerala Sub-Area CSD canteen is not under the control of the Government that it is a voluntary organisation, that the orders passed
in these cases are purely in contractual nature and that as such this question cannot be gone into under Article 226 of the Constitution of India.
Learned Counsel relies upon the decisions in Radhakrishna Agarwal and Others Vs. State of Bihar and Others, , in The Bihar Eastern Gangetic
Fishermen Co-operative Society Ltd. Vs. Sipahi Singh and Others, ; The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, in support
of his contention.
8A. I have considered the arguments of Mr. K. Govindarajan, the learned Counsel for the Petitioners, and of Mr. G. Jawaharlal, the learned
Counsel for the Petitioner in W.P. No. 18464 of 1991 and of Mr. C. Krishnan, the learned Additional Central Government Standing Counsel
appearing for the Respondents. I have also considered the written submissions submitted by the learned Additional Central Government Standing
Counsel. It is necessary to understand the question raised before this Court to see how the Tamil Nadu and Kerala Sub-Area CSD Canteen is
being run at Madras. It is seen from the Regulations for the Army-Volume 2, in which defence service regulations are found, which is a
comprehensive compilation covering the salient aspects of administration of the Regular Army, that the Regulations being non-statutory, are
supplemental to the relevant statutory provisions, wherever they exist, and do not supplant them. It is also seen that Standing Operating Procedure
are promulgated under paragraphs 584 and 586 of the Regulations for the Army. In the introduction it is seen that the Standing Orders are
promulgated under DSR para 584 and 586 of the Regulations for the Army and that the guiding principle is ''service to servicemen (including
servicemen)''. It is also stated that the aim of the Standing Operating Procedures is to lay down the general policy and guidelines with regard to the
organisation, functioning and management of all Sub-Area, Station and other canteens. Each canteen shall be controlled through a Management
Committee headed by Station Commander. There are two members of the Managing Committee, apart from the Managing Officer and the
Committee includes the Manager in the Particular Committee. Each canteen shall function under respective Headquarters Sub-Area/Station Head
Quarters, as a separate Regimental Institution. In paragraph 9 of the Standing Operating Procedure, it is stated as to who are all entitled persons to
the canteen. Para 16 speaks of Canteen i taff as follows:
...To enable the Committee to run the canteen effectively, a suggested staffing pattern is given in Appendix ''C''. Number of employees can be
increased depending upon the yearly turnover, Number of dependents and number of mobile canteens keeping in view of profit earning....
Mode of selection of Staff is stated in para 18 of the Standing Operating Procedure. It is very important to note para 19 of the Standing Operating
Procedure which runs as follows:
...Nature of Service: All employees should bear in mind that CDS is a welfare organisation It is not a Government service. Whatever facilities have
been given are for the good of serving soldiers and Ex-servicemen. Therefore, the staff so employed are to serve their feuovwnen, while earning
reasonably for the service thus rendered...."" As per para 21 of the Standing Operating Procedure, all canteen staff are entitled for basic pay, DA,
gratuity, contributory provident fund etc. The age limit it fixed as 60 years under para 34 para 35 speaks of discipline as follows:
...Discipline: (a) An employee can be given warning for his/her lapses/omissions and breach of conduct immediately on occurance, by the canteen
Officer.
(b) The Service of the Individual, who has not improved his/her behaviour/conduct even after getting three warning, will be terminated....
Para 36 speaks of ''notice for termination of service'' and runs as follows:
...(a) All appointments are on probation during the fust six months. The patron may terminate an employee''s service after giving one month''s
notice in writing or granting pay for one month without assigning any reason (b) An employee may resign his/her service after one month''s notice.
Otherwise, one month pay will be deducted....
It is not necessary for the purpose of this case, refer to other paragraphs of the Standing Operating Procedure, except para 67, which reads as
follows:
...CSD Canteen is a Welfare Institute for all entitled personnel. It should, therefore, be the endeavour of the canteen staff to render the best of
service to the customers with due courtesy....
It is not in dispute that the Petitioners in W.P. 18464 of 1991 have put in 7 years and 24 years of service respectively, that the Petitioner in W.P.
No. 2472 of 1992 has put in 15 years service and the Petitioner in W.P. 2473 of 1992 has put in 5 years service and the Petitioner in W.P. 2474
of 1992 has put in 2-1/2 years service. It is also seen that the services of the Petitioners were terminated by the impugned orders, without any
notice, calling for any explanation. In such circumstances, unless it can be held that the Tamil Nadu and Kerala Sub-Area CSD Canteen is a State
under Article 12 of the Constitution of India, surety a Writ cannot he as contended by the learned Additional Central Government Standing
Counsel for the Respondents. It is seen from the Regulations and the paras of the Standing Operating Procedure, extracted above, that the
Petitioners herein are not Government servants and that they are not entitled to the protection under Article 311 of the Constitution of India. So
they have to approach the Central Administrative Tribunal. It cannot be said that they are part of the defence personnel. CSD Canteen is a shop
almost run by persons controlled by Commanding Officers and the Petitioners are employed under their control. Just because the appointment
order is being made by Headquarters office, it cannot be said that the Petitioners are Government servants, or belonging to Military service. In
Chander Mohan Khanna Vs. The National Council of Educational Research and Training and other[OVERRULED], it has been held as follows:
...Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the
expression ""State"". A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern
concept of welfare State, independent institution, corporation and agency are generally subject to State control The State control does not render
such bodies as ""State"" under Article 12. The State control, however, vast and pervasive is not determinative. The financial contribution by the State
is also not conclusive. The combination of State-aid coupled with an unusual degree of control over the management and policies of the body, and
rendering of an important public service being the obligatory functions of the State may largely point out that the body is ""State"". If the Government
operates behind a corporate veil, carrying out governmental activity and governmental functions of vital public importance, there may be little
difficulty in identifying the body as ""State"" within the meaning of Article 12....
From, in the principle laid down by the Supreme Court mentioned hereinabove, I am satisfied that the Tamil Nadu and Kerala Sub-Area CSD
Canteen cannot be said to be a State under Article 12 of the Constitution of India. I do not think that the decision relied on by Mr. K.
Govindarajan, the learned Counsel for the Petitioners on this aspect, will help the Petitioners.
The next question to be considered is if the CSD canteen is not a State coming under Article 12 of the Constitution of India, whether it will
come under the expression ''any person or Authority'' under Article 226 of the Constitution of India. Undoubtedly, a power is vested in the Court
to issue a writ against a private body or even an individual. It has been held so by Krishna Iyer, J. in Rohtas Industries Ltd. and Another Vs.
Rohtas Industries Staff Union and Others, as follows:
...The expansive and extraordinary power of the High Courts under Article 226 as wide as the amplitude of the language used indicates and so can
affect any person - even as private individual and be available for any (other) purpose - even one for which another remedy may exist. The
amendment of Article 226 in 1963 inserting Article 226(1A) reiterates the targets of the writ power as inclusive of any person by the oppressive
reference to the residence of such person. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull ii a china
shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those
wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate.
The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect the writ
power has, by and large, been the people''s sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights....
The Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R.
Rudani and Others, has held as follows:
...The term ""Authority"" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only
for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Court to issue writs for enforcement
of the fundamental rights as veil as non-fundamental rights.
...The wards ""any person or Authority"" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of
the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant....
The Supreme Court has further held:
...The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It
should remain flexible to meet the requirements of variable circumstances....
It has been further held thus:
...Technicalities should not come in the way of granting that relief under Article 226....
A reading of the Defence Service Regulations and the Standing Operating Procedure would clearly show that service conditions are prescribed by
the Standing Operating Procedure. Para 36 is a condition of service. A similar condition has been considered by the Supreme Court in Delhi
Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, with regard to Delhi Transport Regulations. In that case, K. Ramaswamy, J. in
a separate judgment has held that the Regulation itself is arbitrary, unjust, unreasonable, unconstitutional and violative of Articles 14, 16 and 21 of
the Constitution of India and it is also opposed to the public policy and thereby void u/s 21 of the Indian Contract Act. As such the impugned
orders has got to be set aside on the ground the order of termination has been passed without any proper guidelines or procedure. M. Srinivasan,
J. in John Paulraj, A.P. v. Central Board of Secondary Education etc. 1990 Writ L.R. 223 has held that the common thread which runs through
the fabric of case law is, Article 226 can be invoked only against the State or statutory bodies or Authorities who are State instrumentalities and
that the expression is ""any person or Authority including in appropriate cases, any Government"", and that undoubtedly, a power is vested in the
Court to issue a writ against a private body or even an individual. If the facts of the case are looked at, I have no hesitation to hold that the
termination orders against persons who put in a service of several years, which are impugned in these cases, have got to be set aside, as I am of
the view that the monstrosity of the situation and other exceptional circumstances of these cases, necessitate the issuance of writ in these cases.
Apart from that, the Supreme Court has held in Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, that even if an administrative
order is passed which involves civil consequences, it must be made consistently with the rule expressed in the Latin Maxim ''audi alteram partem''.
In that case, the Supreme Court has held as follows:
...The shift now is a broader notion of ''fairness'' or ''fair procedure'' in the administrative action. As far as the administrative officers are concerned,
the duty is not so much to act judicially as to act fairly. For this concept of fairness, adjudicative settings are not necessary, nor it is necessary to
have lites inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly
depending upon the context and considerations. All these types of non-adjudicative administrative decision-making are now covered under the
general rubric of fairness in the administrative decision unless it affects one''s personal rights or one''s property rights, or the loss of or prejudicially
affects something which would juridically be called at least a privilege does not involve the duty to act fairly consistent win the rules of natural
justice....
If the impugned orders are tested at the backdrop of the dicta laid down by the Supreme Court cited supra, there cannot be any doubt that the
minimum requirement of principle of natural justice has not been followed in these cases.
More so, I do not think that the Respondents can escape by saying that it is purely contractual in nature and that no writ can issue. When the
Petitioners have been in service for a very long number of years, as I have stated above, to throw them out of employment without any enquiry
with the aid of para 36 of the Standing Operating Procedure, in my view, is wholly arbitrary and against public policy. In the view I take, I do not
think it is necessary to consider all the decisions cited by the learned Addl. Central Govt. Standing Counsel, both in his arguments as well as in the
written submissions. As such, the impugned orders are set aside and the Writ Petitions shall stand allowed. It the Respondents want to pursue the
action, it is open to them to take action afresh, after calling for explanation and holding enquiry if they so desire. However, there will be no order as
to costs in these writ petitions.