Urcs , instrumentally of the state , rti act
Guest
(Querist) 14 October 2011
This query is : Resolved
Dear Sir
pl refer to the SC Appeal ( civil) No 3495 of 2008 decided on 28 Apr 2009 on the status of employees of the URC. It says ' That URCs are purely private ventures and their employees are by no stretch of imagination employees of the govt or CSD.---HENCE THE URCs can not be considered as the INSTRUMENTALLY of the state and HENCE URCs are not covered under the RTI ACT 2005. Who said JAG has no brains.
My query ; is the inference taking umbrage from this verdict legal?
Are the URCs not INSTRUMENTALLY OF THE STATE-Defence min of this country is the chairman of BOCCS ( BOARD OF CONTROL CANTEEN SERVICES).
For details see the link --
http://judis.nic.in/supremecourt/imgs.aspx
Raj Kumar Makkad
(Expert) 14 October 2011
No adverse comment can be made against the verdict of Supreme court at least by we experts so there is no illegality in impugned judgment.
Once SC had decided the status of Unit run canteens then there is no use to repeat all such exercise on this platform.
As you are dissatisfied with verdict of SC, file a review therein and advance your entire argument there.
Guest
(Querist) 15 October 2011
I request the experts to refer to the verdicts on the status of employees of URC.
I am simply questing the validity of the inference drawn from the verdict "That URCs are purely private ventures----- employees of the govt or CSD" hence the URCs are not under RTI Act 2005. URCs are very much a instrumentally of the state.
mahendrakumar
(Expert) 15 October 2011
Since there is SC verdict on the subject,it is more than enough for anyone dealing with your RTI query to simply take a stand that URCs are not under rti act.
unless,that observation is revoked by the SC,there is no point in pursuing the matter.
regarding RTI and its efficacy now a days,as an rti activist,I must say the act is not so much of a use to unearth corruption now.
authorities including CIC have become very smart in replying your queries,without divulging any information you seek.
prabhakar singh
(Expert) 15 October 2011
Yeah,they have learned how to live with leaving the RTI.???
Guest
(Querist) 15 October 2011
Dear Sir
Let me put it in verbatim as i have recd from RTI Cell IHQ of MoD (Army) against my RTI query :
a) No of URCs being run by Regular Military Army Units.
b) No of URCs being run by NON-MILITARY units
c) Total No of serving as well as ESMs dependent on Regular Military Units as per your official Data.
d) Total No of non-mil serving as well as retired personnel dependent on URCs run by non-regular military units.
e) Total amount outstanding against URCs disbursed as soft loans by CSD , Mumbai as on date.
f) Total Amount of loan outstanding against Non-mil uRCs.
g) Total Amount of Grant in aid , QD, LOAN disbursed from CSD/ MIN OF DEFENCE to URCs separately for Regular Mil URCS and Non-regular -mil URCs.
The Reply from PIO RTI CELL verbatim---( Extract from ION of IHQ of MoD (ARMY) QMG's Br Dy Dir Gen Canteen Services:-
" Further it is submitted that as per Hon'ble SC decision dated 28 Apr 2009 , " URCs are purely private ventures and their employees are by no stretch of imagination employees of the Govt or CSD" Based on this decision JAG Br Army HQ have ruled that URCs are not covered under the provisions of the RTI Act 2005. Further CIC IN CASE OF sHRI OM PRAKASH AGGARWAL has given a decision on 29 Jan 2010 that SC orders are binding on CIC.
I am not law trained but know for sure law is an ass. I am sure many experts in this forum will have his views how a SC decision for some other context is being taken for a ride.
To give you insight let me now cite another example on the same issue :-
All such /illegal URCs happen to be registered by the Gen Manager Canteen Stores Department which is a solely owned Govt Enterprise. Those URCs being run by Non-military est namely the Audit Est etc etc have also been issued with registration Nos by the GM CSD ,Adelphi , Mumbai.
I sought registration No against each of those NON-REGULAR military Est which had been issued registration Nos ( It is the instrument by which CSD stores are issued to those URCs by those non-mil Est). PIO , CSD denied info stating " this info can not be supplied to you under section 8(1)(a) of RTI Act.
My first appeal to Appeallate auth was responded by Joint Gen Manager ( Mr Mohar Singh) of CSD FIrst Appelate Auth as follows- and I quote verbatim
" 1. Ref
2. The info regarding registration of URCs sought by you vide your aforesaid appeal can not be provided due to the reason that as per clarification issued by JAG bR Amy Hq vide their letter No xxxxxx as intimated by DDGCS office , vide their letter No xxxxx dated 16/11/09 URCs are not covered under the provisions of RTI Act.
Incidentally BOCCAS( Board of Control Canteen Services which is the apex body of the DDGCS is chaired by none other than the Defence Minister of this country. It is therefore DDGCS which is trying to invoke a lower division clerks i.e the JAG Br inference to gag the RTI activists. Very sad inded . Your advice please.
mahendrakumar
(Expert) 17 October 2011
Have you filed a second appeal with the CIC?
if not,file.
during the appeal proceedings,you may plead your above arguments to substantiate that,URCs should be under the rti act.
apart from a general opinion on rti matters,I feel,this forum is not designed for a detailed discussion on the subject matter.
Please visit a friendly website "rtiindia.org" for further discussion and clarification on the matter
umapathi.s
(Expert) 17 October 2011
There are two entities here. one is the URC which is declared as private entity by Apex court. However, you have sought information from CSD about URC . Section 2(f) of RTI Act says information also includes "information relating to any private body which can be accessed by a public authority under any other law for the time being in force". Hence this information can be disclosed. since you have already exhausted first Appeal, file second appeal to CIC on grounds suggested by experts above. you may get a favorable order.
Guest
(Querist) 17 October 2011
Dear Sirs
I am submitting my second appeal to the CIC. I am pasting the link for the performance report of CSD by the CAG , New Delhi whose report based on perceived loss on 2G is about to topple a democratically govt at the centre. Why the report on URc is not suo moto admitted by the govt of India/Min of Defence vis-a-vis the lower division clerks in the armed forces. Why CAG is not forceful in getting it implemented? Why PAC is silent on this issue? Why CAG is not censoring the Military top brasses for complying its ORDER but trying to smuggle out from from the rear door citing a out of the context SC verdict on a civil appeal on the status of employees recruited adhoc by the men in uniform( paid by the govt of India)in their official capacity?
My points are not really restricted to RTI only as my goal is not restricted getting the info which anyway will be denied as I have reason to believe is being done in collusion with top echlons of Bureaucracy( Mr Pradeep Kumar, the present CVC was the defence secy at the min of Defence when BOCCS took the decision to extend CSD facilities to civilians for their positive support to the cause of CANTEEN SERVICES), the Defence audit and the military top brass. The regimental pie is far bigger than the perceived loss in 2G scam.
I am sure some patriotic experts in this forum will come out from the shell and help me to cleanse the systemic failures at the top echelons of governance to help our future generation to live with dignity in the unkind world outside.
Thanks for the advices.
Guest
(Querist) 17 October 2011
Dear Sirs
I forgot to paste the link. Here it is :-
http://www.cag.gov.in/html/reports/defence/2010-11_14PA_DS/chap2.pdf
Guest
(Querist) 17 October 2011
Dear Sir
I need to quote the exact word to the effect from the verdict of SC on the status of employees of URCs as has been quoted by the DJAG in its letter. I went through the entire appeal but found no such words to the effcet. But I am untrained in law. I am pasting the entire judgement. Pl help me to locate the exact order so that I can submit my second appeal to CIC with material evidences on my side.
""Supreme Court of India
Indian Kanoon - http://indiankanoon.org/doc/1062144/
R.R. Pillai(Dead) Through L.Rs. Vs. Commanding Officer Hq ... on 28 April,
2009
Author: . A Pasayat
Bench: Arijit Pasayat, P. Sathasivam, Aftab Alam
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3495 OF 2005
R.R. Pillai (dead) through Lrs. ...Appellants Versus
Commanding Officer HQ S.A.C. (U) and Ors. ...Respondents (With Civil Appeals Nos. 3557-3559,
3560 and 3561 of 2005) JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Doubting correctness of the view of this Court in Union of India v. Mohd. Aslam (2001 (1) SCC
720) reference has been made to a three-Judge Bench and that is how these appeals are before this
Bench. The controversy lies within a very narrow compass.
1
2. The issue is as to the status of an employee of Unit Run Canteen in Armed Forces. While
admitting Civil Appeal No.3495/2005 the matter was referred to a larger Bench as noted above
and other cases were tagged with Civil Appeal No.3495 of 2005. We shall deal with the factual
scenario in Civil Appeal No.3495 of 2005 and after deciding the legal issues involved, apply the
decision to the other appeals.
3. Appellant Shri R.R. Pillai was recruited as Airman in the Indian Air force on 7.10.1967 and was
discharged from service on 31.10.1988 as Junior Warrant Officer as he sought for premature
retirement from service. Before his discharge he had been looking after the affairs of the Unit-RunCanteen (in short the `URC'). After discharge he was engaged as Manager of URC at Southern Air
Command on an honorarium of Rs.1,000/-P.M. w.e.f 1.2.1989. Para 6 of the appointment letter
clearly stated that the appointment was governed by the terms and conditions as laid down in Air
HQ letter No.20728/P/Org dated 31st January, 1984 issued under the relevant Regulations. The
terms and conditions of service of canteen employees are covered by the rules called "TheRules regulating the Terms and Conditions of Service of' Civilian Employees of Air Force Unit Run
Canteen paid out of Non Public Funds".
2
4. According to the appellant the view taken in Mohd Aslam's case (supra) is the correct view, it is
stated that even if Canteen Store Department (in short the `CSD') was not the source of funding,
other parameters clearly cover the employees in question of Government service.
5. Reference is made to certain decisions to support the stand, e.g., Kona Prabhakara Rao v. M.
Seshagiri Rao and Anr. (1982 (1) SCC 442 (para 9) and Satrucharla Chandrasekhar Raju v.
Vyricherla Pradeep Kumar Dev and Anr. (1992 (4) SCC 404 at 412). Even if full funding is not there
partial funding by quality discount is there which is the test for determining as to which employee is
a government servant. Reference is also made to certain subsequent decisions in which Aslam's
case (supra) has been referred to. It is pointed out that on the date the OAs were decided, Aslam's
case (supra) was applicable and therefore de facto doctrine would apply. In any event, it is stated
that Rule 24 cannot take out the benefits in the manner done. The High Court had not considered
the challenge to Rule 24. It is pointed out that the decision which has been given can only be reconsidered for compelling reasons and the view taken in Aslam's case (supra) is a possible view. In
any event, the appointing body is an instrumentality of State and, 3
therefore, Articles 14 and 16 of the Constitution of India, 1950 (in short the `Constitution') are
applicable. With reference to Section 23 of the Indian Contract Act, 1923 (in short the `Contract
Act') it is stated that Section 23 of the Contract Act clearly prohibits the appointments in the
manner done.
6. Learned counsel for the Union on the other hand submitted that Aslam's case (supra) proceeded
on erroneous factual basis. It proceeded on the basis as if the canteen or the establishment in
question was funded by the CSD. The issue is not whether it is an instrumentality of the State.
Issue is whether the concerned employees are government employees. It is submitted that Union
of India and Anr. v. Chote Lal (1999 (1) SCC 554) clearly applies to the facts of the case.
7. It is submitted that unit run canteen is amenable to Shops and Commercial Establishments
Statutes because the appointment cannot be made dehors the Rules. There is no prescribed
qualification or age limit. Similarly there is no grade or cadre. Therefore, it cannot be said that the
concerned employees are holders of civil posts.
8. In the case of Aslam's case (supra) a Bench of this court proceeded on incorrect factual premises
inasmuch as after noticing that the URCs are not 4funded from the Consolidated Fund of India, it went wrong in concluding that the URCs are funded
by CSD as well as the articles were supplied by the CSD. Unfortunately, it did not notice that no
such funding is made by the CSD. Further, only refundable loans can be granted by the CSD to
URCs at the rate of interest laid down by it from time to time upon the application of URCs seeking
financial assistance. URCs can also take from other Non- Public Funds. Further observation
regarding supply is also not correct. URCs, in fact, purchase articles from CSD depots and it is not
an automatic supply and relation between URCs and CSDs is that of buyer and seller and not of
principal and the agent. This Court further went wrong in holding that URCs are parts of CSDs
when it has been clearly stated that URCs are purely private ventures and their employees are by
no stretch of imagination employees of the Government or CSD. Additionally, in Aslam's case
(supra) reference was made to Chandra Raha and Ors. V. Life Insurance Corporation of India (1995
Supp (2) SCC 611). The Bench hearing the matter unfortunately did not notice that there was no
statutory obligation on the part of the Central Government to provide canteen services to its
employees. The profits generated from the URCs are not credited to the Consolidated Funds, but
are distributed to the Non Public Funds which are used by the units for the welfare of the troops.
As per para 1454 of the 5
Regulations for the Air Force, 1964 the losses incurred by the non public funds are not to be borne
by the State.
9. The factors highlighted to distinguish Chotelal's case (supra) in our considered opinion are
without any material. There was no scope for making any distinction factually between Aslam's case
(supra) and Chotelelal's case (supra). In our view, therefore, Aslam's case (supra) was not correctly
decided.
10. The question whether the URC can be treated as an instrumentality of the State does not fall
for consideration as that aspect has not been considered by CAT or the High Court. Apparently, on
that score alone we could have dismissed the appeal. But we find that the High Court placed
reliance on Rule 24 to deny the effect of the appointment. From Rule 4 read with Rule 2 it is clear
classification that all employees are first on probation and they shall be treated as temporary
employees. After completion of five years they might be declared as permanent employees. They
do not get the status of the Government employees at any stage. In Aslam's case (supra) CAT's
order was passed in 1995. By that time 1999 Rules were not in existence and 1984 rules were
operative.
6
11. It is to be noted that financial assistance is given, but interest and penal interest are charged.
The URCs can also borrow from financial institutions. The reference is answered by holding thatemployees of URCs are not government servants.
12. The High Court has come to an abrupt conclusion about validity of Rule 24, distinguishing the
decision of this Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others (AIR
1991 SC 101). Present appellant had questioned validity of Rule 24. High Court should have
considered that challenge in the proper perspective. But it is not necessary to examine that
question as the original employee R.R. Pillai has already expired. But, in the peculiar facts of the
case we direct that a sum of Rs.2 lakhs be paid to his legal representatives within a period of three
months in full and final settlement of all his claims.
13. The applications for intervention are dismissed.
14. This order shall operate in respect of the appeal filed by the deceased through his legal heirs and
other appeals by the Union of India. 7
15. The appeals are disposed of accordingly.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
(P. SATHASIVAM)
..........................................J.
(AFTAB ALAM)
New Del
Guest
(Querist) 17 October 2011
Dear All
Just to avoid overburdening to cause additional stress on your precious time let me paste the extract of para 8 & para 10 of the judgement of the SC on the issue above :
""Para 8:--This Court further went wrong in holding that URCs are parts of CSDs
when it has been clearly stated that URCs are purely private ventures and their employees are by no stretch of imagination employees of the Government or CSD.""
---That was the argument of the DefenceLawyer and not the part of the judgement-----
""10. The question whether the URC can be treated as an instrumentality of the State does not fall for consideration as that aspect has not been considered by CAT or the High Court. Apparently, on that score alone we could have dismissed the appeal.""
--That was also the part of the argument by the same Defence Lawyer--
As I am not law -trained I do not know how JAG , the lower division clerks in the hierarchy in the chain of command in governance got those words as part of the verdict of the SC.
Pl help.
