IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA COPC No. 56 of 2008 Reserved on: 9.11.2009 Date of decision: 23.11.2009 Smt. Omi Thakur … Petitioner Versus Shri R.S. Ahlawat, Colonel Officer … Respondent/Contemner Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the Petitioner: Mr. Ajay Sharma, Advocate. For the respondent: Mr. Sandeep Sharma, Assistant Solicitor General of India. Per V.K. Ahuja, J. : This order shall dispose of the petition filed by the petitioner under Sections 11 and 12 of the Contempt of Courts Act, for initiating contempt proceedings against the respondent for having wilfully disobeyed the judgment passed by this Court on 11.7.2008 in CWP No. 957 of 2003. Briefly stated, the facts of the case as per the judgment are that the petitioner was engaged on daily wage basis as Clerk in CSD Canteen Palchan with effect from 5.5.1995. She had completed eight years of uninterrupted service. However, her services were disengaged by the respondents verbally on 28.10.2002. She served a legal notice upon the respondents and then she challenged her 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 termination before the Central Administrative Tribunal, who vide its order dated 18.11.2003 held that she had failed to make out a case for regularization of her services and her termination was not set aside, but the respondent/department was directed to allow her to work for three days in a month during visit of Mobile Canteen to Kullu. The petitioner challenged the action of the respondents for not regularizing her services. While disposing of the writ petition by this Court, reliance was placed upon two decisions of the Apex Court in Dharma Nand and another Vs. Union of India and others, (2004) 10 Supreme Court Cases 609 and Union of India Vs. M. Aslam, (2001) 1 SCC 720. It was held by this Court that the petitioner was an employee of the Defence Ministry, was government servant, though a temporary employee, but she had rendered eight years of uninterrupted service. Therefore, her services could not have been terminated by the respondents without following the procedure prescribed under Article 311 of the Constitution of India and her termination order was held to be illegal. The further directions issued by this Court may be reproduced as under:- “Respondents No. 1 to 4 shall provide employment to the petitioner on the same terms and conditions and she shall also be entitled to consequential benefits in regard to previous service rendered by her. However, in view of the fact that the petitioner had been out of job and had not worked during this period, she will not be entitled to back wages. Respondents No. 1 to 4 are required to provide employment for her on the same terms and conditions within a period of two months from today. The petitioner filed the present petition alleging that the respondent has not complied with the order passed by this Court in its letter and spirit and as such, has wilfully disobeyed the order passed 3 by this Court. In the reply, the respondent pleaded that the petitioner was employed as Sales Girl on daily wages in the canteen with effect from 1.5.1997 and was never employed as Clerk and as such, as per the judgment, she was not entitled to any back wages and there were no formal terms and conditions or contract of service when she was appointed on 1.5.1997. Therefore, the terms and conditions of service were prepared and the petitioner has been employed on the same amount of Rs.2000/- per month as salary on daily wages basis, which she used to get earlier when her services were disengaged. We have heard the learned counsel for the parties and have gone through the record of the case. During the hearing of the case, this Court had directed that the respondent should file an affidavit stating therein the emoluments paid to sales girls and salesmen in every CSD canteen in Himachal Pradesh engaged on daily wage, permanent and temporary basis. A supplementary affidavit was filed by the respondent in which he pleaded that he had made sincere efforts to get the details of salary being given to salesman in canteen and accordingly, placed on record the instances of six canteens in which the wages were being paid at different rates ranging from Rs.2000/- to Rs.4000/- for the year 2008-2009:- Sr. No. Name of Canteen Year 2008 Year 2009 a) 21 Sub Area CSD Canteen Rs.3500 Rs.4000/- b) Station Canteen Pathankot Rs.3500 Rs.4000/- c) Station Canteen Dehra (HP) for Ex-Serviceman Rs.2420/- Rs.3050/- d) Sarvatra CSD Canteen HQ 39 Mountain Division Arty Bde (Alihal) HP) Rs.2200 Rs.3300 4 e) Station CSD Canteen HQ 33 Mountain Brigade Dharamshala (HP) Rs.2000 Not revised yet F Rising Star CSD Canteen Yol Cantt Rs. 3125 Not known It was pleaded that there is no similarity in the pay being given to the employees of the canteens since the pay of employees working in CSD varies from one station to another. The respondent in his supplementary affidavit also quoted an example of a person working in the same canteen, namely, Ramesh, who was getting Rs.110/- per day earlier, which has been enhanced to Rs.120/- per day with effect from 1.1.2009. During the course of arguments, the learned counsel for the petitioner had again relied upon the decision in Dharma Nand’s case (supra), to submit that the petitioner was a government servant and as such, was entitled to the said scale. He had also placed on record a letter issued by the Lt. Col. (Joint Director) dated 28.4.2003 and the copies were addressed to Southern Command and other Commands under the Army. The said copy has also been relied upon by the learned Assistant Solicitor General of India for the respondent and he placed a legible copy on record since the copy filed by the petitioner’s counsel was not very much legible. Our attention has been drawn to the said instructions and the relevant portion is reproduced below:- “(a) These Rules shall apply to all civilian employees of Unit Run Canteens paid out of Non Public Fund Account but shall not apply to any person engaged on daily wages or on casual employment or to those hired on a contractual basis whose conditions of service will be regulated by their appointment 5 letters. These Rules shall also not apply to serving defence personnel who may for the time being be detailed to work therein in any capacity whatsoever in addition to their own duties.” Thus, these instructions have been relied upon by both the parties which clearly shows that the conditions of services of such persons appointed on contractual basis shall be regulated by their appointment letters. Our attention has also been drawn to the decision of the Hon’ble Apex Court in R. Pillai (dead) through Lrs. Vs. Commanding Officer HQ S.A.C. (U) and Ors., Civil Appeal No. 3495 of 2005, decided by the Apex Court on 28.4.2009, consisting of three Hon’ble Judges of the Apex Court. In that case their Lordships had referred to the decision in Mohd. Aslam’s case (supra), in which it was observed that in their view Mohd. Aslam’s case was not correctly decided. It was also observed that the reference is answered by holding that the employees of Unit Run Canteens (URCs) are not government servants. This decision clearly lays down the law as at present and the Hon’ble Apex Court has held that the employees of Unit Run Canteens (URCs) are not government servants. We are not sitting in review of the judgment passed by us, but we are only considering the directions given to the respondent and as to whether he has committed contempt of the order of the Court. It is clear from a perusal of the order passed by this Court that there were no specific directions in regard to the pay to be given to the petitioner and it was directed that she be provided employment on the same terms and conditions, on which she was working, meaning thereby that this order was liable to be interpreted as directing the respondents to pay the same pay as she was getting as a daily wager when her services were disengaged in the year 2002. 6 However, in case, the rates have been revised during the period, the respondents are bound to give the same pay to the petitioner as being paid to other similarly placed employees. The respondent in his affidavit has ensured that same pay will be paid to the petitioner as was being paid to another employee, namely, Ramesh, as mentioned in the supplementary affidavit filed by the respondent. It follows from the above discussion that no wilful disobedience was made by the respondent in complying with the order passed by this Court. However, it is clarified that the petitioner shall be entitled to daily wages earlier at the rate of Rs.110/- per day, which has been enhanced to Rs.120/- per day with effect from 1.1.2009 as is being paid to another person, namely, Ramesh, employee in the same canteen as a daily wager. In view of the fact that no wilful disobedience was made by the respondent, notice issued to the respondent is discharged and the petitioner shall be given the revised pay within a period of three months from today. The petition stands disposed of. ( Deepak Gupta ), Judge ( V.K. Ahuja ), November 23, 2009 Judge (BSS) 7