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2013 DIGILAW 885 (KER)

N. C. C. Group Unit Run Canteen Employees' Association, represented by its Secretary v. Union of India, represented by its Secretary

2013-10-09

K.VINOD CHANDRAN

body2013
JUDGMENT : K. VINOD CHANDRAN, J. 1. The 1st petitioner styles itself as an Association of Employees of the NCC Group Unit Run Canteen (hereinafter referred to as "NCC URC") and the 2nd petitioner is the Assistant Manager of the NCC URC in Calicut. The petitioners are aggrieved by Exhibits P4 and P5 orders. By Exhibit P4 ex-servicemen and widows entitled to Canteen facilities, attached earlier to the NCC URC, were transferred to the Extension Counter, Calicut of the Golden Palm Canteen, Palakkad. Exhibit P5 is a communication of the Station Commander directing the NCC URC to move out from the premises allotted to it inside the Barracks at West Hill in anticipation of a Company moving into the said premises. In fact Exhibit P5 reveals that the State Government has provided a building at Exhibition Road, West Hill, Calicut to cater to the needs of NCC and Exhibit P5 order directs shifting of the NCC URC to that building. The petitioners' grievance seems to be that on detaching ex-servicemen and widows from the NCC URC, the Canteen would lose a major chunk of its business, thus jeopardising the employment opportunities of the employees who are members of the 1st petitioner Association. 2. At the stage of admission, an interim order was granted by this Court staying eviction of the petitioners from the building in question on the basis of Exhibit P5. The official respondents have filed a statement and also a counter affidavit, both on the very same lines and have also sought for urgent hearing of the writ petition, since the policy decision taken as per Exhibits P4 and P5 has been virtually stayed by the interim order of this Court. The petitioners have also filed reply affidavit/statement and since the pleadings were complete, this Court took up the matter for hearing. 3. The respondents contend that the shifting of the Canteen is not a solitary action with any ulterior motive and is part of the deployment of troops by Military authorities effectuated in over all organisational interest. It is averred that the facilities in Kannur being found to be insufficient, the personnel from DSC, Kannur was shifted from Kannur and was to be retained in the Barracks at Calicut and it was in continuation of such a movement that the NCC URC was asked to move out from its present premises. It is averred that the facilities in Kannur being found to be insufficient, the personnel from DSC, Kannur was shifted from Kannur and was to be retained in the Barracks at Calicut and it was in continuation of such a movement that the NCC URC was asked to move out from its present premises. It is also averred that a permanent accommodation has been provided at Beach Road, Calicut by the State Government, which has been constructed expending almost Rs.5.5 crores by the State. The Unit Run Canteens cater to the needs of the cadets and personnel of the NCC as also in some instances service personnel and the ex-servicemen and it is not for the employees to decide as to which of the Canteen should cater to the various categories of persons entitled to canteen facilities. The NCC URC is asserted as to be continued, to cater to the NCC Cadets and the service personnel attached to the NCC, who alone will be hereafter dependent on it. The official respondents also categorically submit that there are only five permanent employees in the NCC URC at Calicut and the balance 23 are contractual employees deployed by one Malabar Security Agency and even the remuneration is given by the said agency and not by the NCC URC. So much is admitted by the petitioners in its reply affidavit dated 05.10.2013, wherein, few employees out of the 28 are said to be working on a contractual basis. 4. At the outset, it is to be noticed that this Court cannot invoke the extra-ordinary jurisdiction under Article 226 of the Constitution merely on the anticipation of denial of employment. The counter affidavit placed on record by the official respondents would dispel any such fear too, since the NCC URC is to be continued, however limiting its services to the service personnel in the NCC and the Cadets. It is also trite that when alternative remedies have been provided for by statutes to ventilate the grievances of loss of emoluments and denial of employment, the extra-ordinary jurisdiction of this Court cannot be invoked to remedy such ills. 5. The bulwark of the contention of the petitioners is based on Exhibits P17 and P18. It is also trite that when alternative remedies have been provided for by statutes to ventilate the grievances of loss of emoluments and denial of employment, the extra-ordinary jurisdiction of this Court cannot be invoked to remedy such ills. 5. The bulwark of the contention of the petitioners is based on Exhibits P17 and P18. Exhibit P17 occurred in a similar instance, where an Extension Counter of the Palakkad URC was established in Thrissur and certain members, also ex-servicemen, attached to NCC URC, Thrissur was sought to be transferred to such Extension Counter of the URC, Palakkad, opened at Thrissur. On a reading of Exhibit P17, the said writ petition was filed on similar lines and the respondents countered the same with the very same contentions raised herein. The official respondents therein also, sought to sustain the decision on the ground that it is a policy decision whether an extension of a Military Canteen should be opened in a different centre or district and it does not lie in the mouth of the employees of the Canteen to decide as to who should be attached to their Canteen. It has to be noticed that the learned Single Judge, after noticing the contentions raised on behalf of both sides, carefully did not pass any order on merits. Banking on a submission made that the Chief of Army Staff would look into the dispute, the learned Single Judge directed that an appropriate decision will be taken in the matter. This Court is not convinced that there is any binding precedent laid down in the said decision. 6. Subsequently, in compliance with the judgment, the Chief of Army Staff has taken Exhibit P18 decision. The Chief of Army Staff is seen to have taken into consideration the necessity to safeguard the job of the employees in the Canteen as also the protection of their salary and allowances. The said grievances of the employees in that context were examined with reference to the smooth operation of Canteens within the States of Andhra Pradesh, Tamilnadu, Karnataka and Kerala and the decision to open Extension Counters where NCC URCs were exclusively catering to service personnel and ex-servicemen within their jurisdiction. The learned counsel for the petitioners emphasise with reference to para 2 of Exhibit P18 that what the Chief of Army Staff did by Exhibit P18 was to formulate a uniform policy. The learned counsel for the petitioners emphasise with reference to para 2 of Exhibit P18 that what the Chief of Army Staff did by Exhibit P18 was to formulate a uniform policy. However, that may not be correct, since in paragraph 2 it is only stated that in deciding the issue the Chief of Army Staff was guided by the possibility of the order passed being translated into an uniform policy. In fact in paragraph 5, directions (a) to (g) were given "with regard to the case in hand" (sic). It is also pertinent that the said decision was arrived at in July, 2007 and, as has been noticed, with respect to the particular instance of the NCC URC facilities of ex-servicemen being shifted to the Extension Counter at Thrissur. Exhibit P18 dealt with the particular fact situation existing as in 2007. Even if the anticipation of the Chief of Army Staff that this may be translated into a uniform policy is taken into account, it has to be mentioned that the ex-servicemen in the said case stood transferred from the NCC URC to the Extension counter by clause 5(a) of Exhibit P8. True, looking at the facts of that case, the pay of employees were directed to be safeguarded and an option was also given to offer themselves for employment in the Extension Counter. The other directions again were on the facts emanating in the said incident and cannot be termed to be directions issued for all time to come and taking care of all situations. It is also to be noticed that the very same petitioners in Exhibit P17 challenged Exhibit P18 order of the Chief of Army Staff in yet another writ petition, numbered as W.P.(C).No. 26033 of 2007. However, the same was dismissed and Exhibit P10 (Exhibit P18 herein) was upheld, by judgment dated 06.03.2008. 7. As was stated earlier, Exhibit P18 can have only application to the facts that were revealed in the said case and cannot have general application. If the policy makers as anticipated by the author of Exhibit P18 translates it into an uniform policy, none could have a dispute on that; but the decision would be of the policy makers and this Court cannot impose its own reasoning in formation of such policy. Nor can there be a mandate that Exhibit P18 should be followed as a general policy. 8. Nor can there be a mandate that Exhibit P18 should be followed as a general policy. 8. Briefly tracing the history of the establishment of NCC URC, the same was accommodated within the West Hill Barracks in 1965 by a sanction accorded in Exhibit P12, since there was acute scarcity of accommodation in Kozhikode and no proper accommodation to house the 5 NCC Units could be secured. Such accommodation secured within the West Hill Barracks was also on annual rent, which, going by Exhibit P12, is borne by the State Government. The official respondents have specifically stated that the State Government has now provided permanent accommodation after spending crores of rupees to that end. Interestingly and surprisingly the petitioners have not chosen to implead the State Government in the above writ petition. The Excise Commissioner of the State has been impleaded, the reason of which is not clear, and the only presumable one is that the URCs are dealing in foreign liquor, for which a licence would be necessary under the Abkari Act. But that is not an issue projected herein and the State of Kerala would have been a proper and necessary party in the above writ petition. 9. The reply statement/affidavit filed by the petitioners challenge the policy decision of the official respondents on the advisability of opening an Extension Counter in Calicut and also the lack of prioritization. Advisability and priorities are to be decided by the policy makers and so long as the same is arrived at in a reasonable manner, supported by cogent material and weighing the pros and cons of the overall functions and ancillary activities; it cannot be called in question by anyone especially the employees of an ancillary wing of the over all whole. 10. The official respondents have placed on record that the functioning of the Canteens are regulated by a Manual and Unit Standard Operating Procedure formulated on the basis of various Government Orders/Policies. It is also specifically stated that there is no proposal to shut down the NCC URC and that the same will be continued in the new premises allotted by the State Government, especially in the context of the entire NCC Group Headquarters being moved out of the West Hill Barracks. It is also specifically stated that there is no proposal to shut down the NCC URC and that the same will be continued in the new premises allotted by the State Government, especially in the context of the entire NCC Group Headquarters being moved out of the West Hill Barracks. The establishment of a Golden Palm Canteen to serve the ex-servicemen, who were hitherto served by the NCC URC also, is a policy decision taken by the official respondents in the context of shifting of NCC Group Headquarters to is own building. It is pertinent that the Canteen facilities offered by the official respondents is a facility to be enjoyed by the service personnel and ex-servicemen and it cannot be taken solely as a source of employment for the personnel in the Canteen. The employment generated is incidental to the Canteen facilities offered by the Army and has to concede to the over all balancing of the activities undertaken by the official respondents in providing such facilities. Needless to say, any denial of employment or loss of employment or emoluments or even loss of crystallized benefits could be agitated by aggrieved persons before the appropriate forums as provided in the various labour legislations in existence. A petition, invoking the jurisdiction under Article 226 of this Court, cannot be entertained wherein such alternate remedies are prescribed. 11. On a close reading of the averments in the writ petition as well as the reply affidavit/statement, it is discernible that the petitioners challenge the policy decision of the official respondents on the alleged grievance of loss in employment; but in fact attempts to settle internecine conflicts between the NCC and the regular Army. This Court specifically makes a mention of the same, since the petitioners rely on Exhibit P1 communication issued to the Additional Director General, NCC Directorate, Thiruvananthapuram by the Group Commander of the NCC Group Headquarters, West Hill Barracks, Calicut. On a reading of Exhibit P1, it is evident that NCC Group appropriate the profits of the NCC URC under various heads. As far as NCC URCs; only 10% of the profit is contributed to the Command Development Fund (CDF) and the balance is distributed amongst the Units under the Group. The profit enures to the benefit of the NCC Group and a solution is also put forth, offering to contribute 30% of the profits generated, to the CDF. As far as NCC URCs; only 10% of the profit is contributed to the Command Development Fund (CDF) and the balance is distributed amongst the Units under the Group. The profit enures to the benefit of the NCC Group and a solution is also put forth, offering to contribute 30% of the profits generated, to the CDF. This seems to be the real issue which has resulted in the filing of the writ petition. Even going by the grounds in the writ petition, Exhibit P4 is attacked on the ground that it is without any rational basis and against the orders of the Quarter Master General as also justifying the concerns expressed by the Director General, NCC. An attempt is also made to assail Exhibits P4 and P5 as arbitrary and illegal on the ground of it being vitiated by mala fides, but however, without any sustainable grounds laid out or any particular person being named. The employment loss projected as being underlying the grievance of the petitioners is on the basis that the detachment of ex-servicemen from the NCC URC would "virtually render the number of the first Petitioner Association jobless" (sic) (Ground-B). The petitioners also rely on Exhibit P17 judgment of this Court and Exhibit P18 decision arrived at by the Chief of Army Staff as being governing the issue projected; which reliance has already been found by this Court to be of no avail. 12. In any event, this Court is convinced that the grievance projected by the petitioners, being denial of employment, is not the underlying issue in the above writ petition. Exhibit R1(c) reveals that Unit Run Canteens are divided into URCs (Field forces upto Div HQ and equivalent), Static URCs (Non-Fd force/Higher Fmn HQ which move rarely) and URCs (ESM). Evidently NCC URCs come under Static URCs. Distribution of profits indicated by Exhibit R1(c) shows that while in URCs (Field Forces) utilisation of 100% profits is by the Commanding Officers of the Unit, as per laid down norms, in Static URCs 10% of net profits is to be deposited in CDF while the Commanding Officer in charge of the Static URC gets to manage the entire balance 90% of profits. In URC (ESM), 75% of the net profit is to be deposited in CDF and 25% is to be utilised for improving/creating local facilities by the HQ/Unit responsible for running the Canteen. In URC (ESM), 75% of the net profit is to be deposited in CDF and 25% is to be utilised for improving/creating local facilities by the HQ/Unit responsible for running the Canteen. This consequence is highlighted in Exhibit P1, where the Group Commander's concern over the "Withdrawal of ESM Dependency" is in the 100% profits being repatriated to Area HQ. Though the assumption of appropriation of profits of URC (ESM) is belied by Exhibit R1(c); it is crystal clear that the anticipated loss of profit to the NCC URC is behind the present writ petition. In so saying, this Court also take specific notice of the submission of the official respondents placed on record through a counter affidavit that confidential documents have been produced in the writ petition, against which proceedings are pending. This Court would have ordinarily come down heavily on any litigant attempting to divert the course of justice. But, noticing that there is an underlying cause to ventilate internecine disputes before this Court and the petitioners may, in such context, be mere pawns, this Court desists from making any adverse comments or orders. The writ petition is dismissed, leaving the parties to suffer their respective costs.