Indian Overseas Bank Vs. I.O.B. Staff
Canteen Workers Union & ANR [2000] INSC 220 (11 April 2000)
S.S.Ahmad, Doraswami Raju
L.I.T.J
Raju, J.
These three appeals relate to a common
grievance of a group of 33 canteen employees of Indian Overseas Bank Staff
Canteen and involve for consideration a vexed question but often relentlessly
fought and put in issue between the workers and management as to status and
relationship of workers in such canteens vis-a-vis the main industry or
establishment concerned. At the Central Office of the Indian Overseas Bank at
Madras (for short IOB), the canteen facilities have been provided to the staff
employees and the departments of the Central Office, in the main building, new
building and canteen block as also C&I Branch and Cathedral Branch.
Initially, it appears that the said canteen was run through a contractor
engaged by the management of the bank. But subsequently on the representation
of the All India Overseas Bank Employees Union, the Central Office of IOB
agreed for the floating of a society in the name and style of Indian Overseas
Bank Staff Co-operative Canteen with effect from 3.1.73. In order to facilitate
the running of such a canteen, the Central Office has not only got the
erstwhile contractor, who was running the same in the canteen block, vacated
the canteen premises on 30.10.72 but wanted the Co-operative Canteen to
commence its functions from 2.1.73 to ensure continuity in providing the
services to the staff. The Central Office agreed to provide all infrastructural
facilities, such as premises, furniture, utensils, electricity (other than
fuel), cost of fuel initially upto a maximum of 600 per month, subsequently
increased to 6000 per month and water supply. This was in addition to providing
the oven and burners, wash basin, gas and cylinders and a subsidy @ Rs.12.50
per member of the staff using the canteen. The Co-operative canteen was
promoted in that manner not only with the blessings and active co-operation and
assistance of the Central Office but the all promoters were actually the
serving members of the staff of the bank.
No doubt, after the formation of the
Co-operative canteen, a separate account has been opened in the name of the
canteen which was operated by the promoters and periodically funds have been
credited to the said account by the Central Office to carry on the day-to-day
administration of the bank. It is also a fact that the staff required were
employed by the promoters who have been administering the canteen. It is seen
from the inter se correspondence and the material placed on record that the
amount of contribution of funds and the subsidy was being increased from time
to time depending upon the escalation of the costs of maintenance on the
representation of the persons in charge of the running of the co-operative
canteen. Despite such increase, having regard to the subsidised and
concessional rate of supply of the edibles as also the beverages supplied to
the staff employees both ends could not be economically met resulting in the
persons incharge of the canteen declaring their inability to continue the
canteen in the absence of further increase in the subsidy and grant to make up
the vast difference. Since the bank was indifferent, the canteen was closed
with effect from 26.4.90.
There is no controversy or dispute over the
further fact that the canteen was being run only with the funds provided by the
Central Office and the amounts realised from day-to-day receipts and neither
the promoters nor any of the employees using the canteen otherwise had either
contributed any capital or was obliged to make any such contribution to make
the canteen economically viable or keep going at any cost. It is also not in
dispute that with the closure of the canteen the workers engaged have been
thrown out of employment and this resulted in an industrial dispute, raised
through the workers union. Their stand was that the staff canteen in question
was really managed by the bank though the day-to-day affairs of the management
was entrusted to the employees of the bank nominated by the recognised union of
the bank and, therefore. the canteen employees have to be treated as the
employees of the bank and restored to work. In this connection, the union
sought to draw inspiration from the practice in vogue in the Railways and other
Nationalised banks, including State Bank of India. Per contra, the Central
Office took the stand that except providing the facilities as well as funds in
the nature of grant and subsidy, the Staff Canteen was operated only by the
promoters by engaging the required workers and there is no nexus or any
relationship of an employer-employee between the management of IOB and workers
of the canteen and consequently they cannot be considered to be the employees
of the management.
The conciliation proceedings having failed,
the Government of India in exercise of the powers conferred under clause (d) of
sub Section (1) and sub Section (2A) of Section 10 of the Industrial Disputes
Act, 1947 referred the following dispute for adjudication by the Industrial
Tribunal, Chennai:
``Whether the demand of the workmen of the
Indian Overseas Bank Staff Canteen represented by the Indian Overseas Bank
Staff Canteen Workers Union, Madras for treating the staff of such canteens
which are run by the local implementation committees, as workman of Indian
Overseas Bank for giving them the same status, pay and facilities as are
available to other Class IV employees of the Bank is justified ? If so, to what
relief the workmen concerned are entitled ? This was taken on file as I.D.
No.72 of 1990.
Subsequently, on 17.2.91, the Government of
India again referred the following dispute for adjudication by the Industrial
Tribunal, Chennai:
``Whether the demand of the Indian Overseas
Bank Staff Canteen Workers Union, Madras for reinstatement of 33 canteen
employees for whose names are given in the Annexure, into the services of the
Indian Overseas Bank, as a result of the closure of the canteen by the local
implementation committee, is justified ? This dispute was taken on file as I.D.
No.83 of 1991.
While matters stood thus, the Central Office
had made arrangements with a third party for running the canteen on contractual
basis with effect from 15.3.92 and aggrieved complaint No.4 of 92 under Section
33-A of the Industrial Disputes Act, 1947 [hereinafter referred to as The Act]
read with Rule 59 of the Industrial Disputes (Central) Rules, 1957 [hereinafter
referred to as The Central Rules] came to be filed on behalf of the workers.
The two disputes as well as the complaint were taken up for hearing together
and in view of a joint memo stating that evidence may be recorded in complaint
No.4 of 92 and the said evidence may be treated as evidence in I.D.No.72 of 90
and I.D. No.83 of 91, all the three matters can be tried together and a common
award be passed.
The Tribunal, after considering the
pleadings, the oral and documentary evidence adduced by both parties, held as
follows:
26. So, bearing in mind these decision, if we
take into consideration the following facts namely; (1) That the canteen is in
the premises of the Bank; (2) That the canteen is for the exclusive use of the
staff of the Bank;
(3) That the working hours and days of the
bank; (4) That the Bank provided the infrastructure like furniture, utensils,
refrigerators, water coolers apart from meeting the cost of gas, electricity
and water; (5) That the cost of the materials were met and wages for the
workmen are also met only from the funds provided by the bank; (6) That neither
the workers nor the Managing Committee contributed either to the capital or the
expense for running the canteen; (7) That the bank gave the subsidy for
supplying the food articles to its employees at concessional rates;
(8) That they even provided cycles and
tricycles to the canteen for the supply of food stuffs then it will be clear
that the employees of the canteen will have to be treated as the employees of
the bank, despite the fact that the ultimate control and supervision over the
employees of the canteen was with the Managing Committee, and also the fact
that the employee of the canteen were appointed only by the Managing Committee,
itself comprised only of the employees of the respondent-bank. So, I have to
hold that it was the Bank who was running the canteen through the Managing
Committee which consisted of the employees of the bank. So, in the light of the
discussions above, I find that the 33 employees of the canteen have to be
treated as the workmen of the respondent bank for giving them the same status,
same facilities as are available to the Class IV employees of the bank.
It was also held that there had been
violation of Section 25-O (6) of the Act and the closure of the canteen shall
be deemed to be illegal from the date of the closure of the workmen shall be
entitled to all the benefits under the law for the time being in force, as if
the canteen had not been closed. The Tribunal also allowed the claim made in
the complaint No.4 of 92, since concedingly the Central Office had arranged the
function from 15.3.92 by entrusting the same to a contractor and such an action
during the pendency of the disputes before the Industrial Tribunal constituted
an alteration in the service conditions of the canteen employees.
Aggrieved against the common Award dated
27.5.94, the bank management filed three Writ Petitions Nos.21251-21253 of 1994
challenging the award in the three proceedings, noticed above. They were heard
in common and a learned Single Judge of the Madras High Court by his order
dated 8.3.96 quashed the awards holding that there was no employer- employee
relationship between the bank management and the canteen employees and
consequently the question of reinstatement of the 33 canteen workers or taking
cognizance of the complaint under Section 33-A of the Act do not arise.
Aggrieved, the workers union pursued the
matter on appeal before the Division Bench in Writ Appeal No.463-465 of 1996.
The learned Judges of the Division Bench
accepted the appeal by setting aside the order of the Single Judge and
restoring the award of the Tribunal, on the view that not only the bank in
question had an obligation to run the canteen but in fact was only running the
canteen. It would be useful as also necessary to advert to the factual details
noticed by the Division Bench which weighed with it to overrule the decision of
the Single Judge and restore the award passed by the Industrial Tribunal in the
matter. In paragraphs 6 to 9 of their judgment, the learned Judges of the
Division Bench analysed the factual position recorded by the Tribunal, while
pointing out the infirmities in the approach as well as the impermissibility of
the exercise undertaken by the learned Single Judge by observing as follows:
6. It is therefore our difficult task to go
through facts of the present case and come to a conclusion one way or the
other. The first aspect of the case is that even here, there is no statutory
obligation on the part of the bank to provide canteen facilities to its
employees. But the question is whether there is any legal obligation implicit
or explicit, as pointed out in the LIC case.
Before the Tribunal, the following aspects
were emphasised by the canteen employees:
(i) Three promoters were appointed from among
the permanent employees of the bank for a period of one year;
(ii) At the end of one year, another committee
was nominated by the bank. The promoters were looking after the day to day
supervision of the canteen apart from doing their regular work as bank
employees;
(iii) The management had taken upon itself
the responsibility of providing canteen facilities to the employees under a
subsidised scheme;
(iv) The bank provided the basic requirements
like building, utensils, crockery, cutlery and furniture etc.;
(v) The bank was giving subsidy for meeting
the salary of the canteen employees and were increasing the same from time to
time.
(vi) Supply of foodstuffs at concessional
rate was also done by the bank;
(vii) The cost fuel, electricity and water
supply charges apart from providing refrigerators and water coolers were also
met by the bank; and (viii) In effect, the canteen was run out of the funds of
the bank.
As against the above, the bank contended (i)
that there was no employer employee relationship; (ii) it was only at the
request of the union that the bank agreed to provide a canteen; (iii) the bank had
no say in choosing the members of the committee and (iv) the canteen is not for
the exclusive use of the bank.
7. In evidence, one other important fact was
brought out, viz., that the canteen workers were employed under a Welfare Fund
Scheme of the Bank. They are made eligible for periodical medical check up by
the Doctors of the bank. On the above rival submissions and evidence, the
Tribunal came to the following conclusions: (i) that the canteen run in the
premises of the bank; (ii) the canteen is for the exclusive use of the bank
staff; (iii) the bank provided the infrastructure facilities; (iv) the managing
committee did not contribute anything towards the capital or the expenses for
running the canteen; (v) the bank gave subsidies to subsidise the purchase of
food articles and (vi) the bank provide cycles and tricycles to the canteen for
the supply of foodstuffs - Consequently, the Tribunal came to the conclusion
that the thirty three employees have to be treated as workmen of the bank and
should be given the same status and facilities as are available to the class IV
employees of the bank. The Tribunal also held that the closure of the canteen
when the dispute was pending was illegal.
8. The question is whether in view of such
categorical findings of fact arrived at by the Tribunal, the learned Single
Judge exercising jurisdiction under Article 226 of the Constitution of India
could re-appreciate the evidence and come to a different conclusion. We have
already pointed out that the learned single Judge had erred in appreciating
certain documents and the evidence in the case. We are clearly of the opinion
that the learned Single Judge had no material to characterise the judgment of
the Tribunal as perverse. We will once again refer to certain important matters
which would go a long way to decide the matter. The inference drawn from Ex.M1
that it was the Union, who wanted the canteen is far from truth. The subsequent
evidence has got to be looked into on this aspect of the case. In Ex.M4, dated
23.4.1988, the Union has informed the bank about the new canteen promoters for
the record of the bank. The inference drawn by the learned Judge from Ex.M5
that the canteen was not exclusive for the bank is based on a misconception.
The evidence of MW1 clearly shows that the canteen is meant only for the bank.
His evidence is as follows:
The canteen is meant only for the staff of
the bank the canteen will remain only for closed on bank holidays.
The observation that the bank was running the
canteen to retain good relationship between the union and the management is not
appropriate and on the other hand, it only shows that the bank was implicitly
bound to maintain the canteen. The learned Single Judge has not given due
weight to the two principles enunciated in the LIC case and undisturbed by the
RBI case. We have already quoted those principles.
9. One other significant fact which has
escaped the attention of the learned Single Judge is the letter written by the
Central Office of the bank when the promoters expressed their inability to run
the canteen with effect from 26.4.90. Says the management as follows:
Member of staff are advised that the canteen
will function in our canteen block with effect from 21.10.1992.
The contractors will run the canteen with
minimum staff for a week on a trial basis to overcome the difficulties if any.
The canteen will run normally after a week or
so.
The bank further says that the canteen is for
the welfare of the staff and directs as follows:
All members are requested to avail this
facility and refrain from going out for coffee and tea. Since the canteen has
started functioning the Department Heads should inform all the staff members to
restrict their lunch time to half an hour between 12.30 and 3.00 p.m. and the
staff may be permitted to go for lunch in fixed time to avoid heavy rush at the
canteen.
The above passage quoted from the letter of
the Central Office of the Bank amply establishes that the bank had an
obligation to run the canteen and in fact, was running the canteen, through
contractors, even though the promoters had withdrawn their services. Actually,
it appears that the promoters were desirous of forming a co-operative society
and it did not fructify. In this view of the matter, it is clear that as in the
LIC case, the bank had been running the canteen by one or other of the agency.
Before dealing with the contentions of the
counsel on either side, it is necessary to refer to the earlier, at least of a
few pronouncements of this Court, which lay down the approach to be adopted and
guidelines to be followed, in analysing as well as answering the issues raised,
which at any rate have generated much heat, for almost nearly a decade. The
first in the series is the decision of this Court rendered by a Bench of three
learned Judges reported in M.M.R. Khan & Ors. vs. Union of India & Ors.
[1990 (Supp.) SCC 191]. In this case, this Court classified the canteens into
three categories: (1) Statutory canteens which are required to be provided
compulsorily in view of Section 46 of the Factories Act, 1948; (2) Non-
statutory recognised canteens- such of those which are established with the
prior approval and recognition of the Railway Board as per the procedure
detailed in the Railway Establishment Manual; and (3) Non-statutory non-
recognised canteens - which are canteens established without prior approval or
recognition of the Railway Board. Of the employees in the statutory canteens,
it was held that they are entitled to the status of Railway Employees, also for
the reason of the factual findings found discussed in the judgment. So far as
the employees of the non-statutory recognised canteens are concerned, they were
also held entitled to be treated on par with those employees in the statutory
canteens and as Railway servants, for all purposes. The third category of
employees were held not entitled to claim the status of Railway servants.
P.B. Sawant, J., who authored the decision in
MMR Khans case (Supra), has once again spoken for an another Bench of himself
and Majmudar, J., in the decision reported in Parimal Chandra Raha & others
vs. Life Insurance Corporation of India & Others (for short LIC case) [1995
Supp. (2) SCC 611] and after review of the case-law on the subject, culled out
the principles emanating from them as hereunder:
25. What emerges from the statute law and the
judicial decisions is as follows:
(i) Whereas under the provisions of the Factories
Act, it is statutorily obligatory on the employer to provide and maintain
canteen for the use of his employees, the canteen becomes a part of the
establishment and, therefore, the workers employed in such canteen are the
employees of the management.
(ii) Where, although it is not statutorily
obligatory to provide a canteen, it is otherwise an obligation on the employer
to provide a canteen, the canteen becomes a part of the establishment and the
workers working in the canteen, the employees of the management. The obligation
to provide a canteen has to be distinguished from the obligation to provide
facilities to run canteen. The canteen run pursuant to the latter obligation,
does not become a part of the establishment.
(iii) The obligation to provide canteen may
be explicit or implicit. Where the obligation is not explicitly accepted by or
cast upon the employer either by an agreement or an award, etc., it may be
inferred from the circumstances, and the provision of the canteen may be held
to have become a part of the service conditions of the employees. Whether the
provision for canteen services has become a part of the service conditions or
not, is a question of fact to be determined on the facts and circumstances in
each case.
Where to provide canteen services has become
a part of the service conditions of the employees, the canteen becomes a part
of the establishment and the workers in such canteen become the employees of
the management.
(iv) Whether a particular facility or service
has become implicitly a part of the service conditions of the employees or not,
will depend, among others, on the nature of the service/facility, the
contribution the service in question makes to the efficiency of the employees
and the establishment, whether the service is available as a matter of right to
all the employees in their capacity as employees and nothing more, the number
of employees employed in the establishment and the number of employees who
avail of the service, the length of time for which the service has been
continuously available, the hours during which it is available, the nature and
character of management, the interest taken by the employer in providing,
maintaining, supervising and controlling the service, the contribution made by
the management in the form of infrastructure and funds for making the service
available etc.
Thereupon, the factual matrix disclosed from
the materials on record in that case were dealt with besides noticing the fact
that though the LIC has not explicitly undertaken to provide canteen services
to its employees working in the offices but only accepted explicitly the
obligation to provide to the employees facilities to run the canteen, the facts
on record established that the LIC had implicitly accepted the obligation to
provide canteen services and not merely the facilities to run the canteen.
It was also observed there under as follows:
29. The facts on record on the other hand,
show in unmistakable terms that canteen services have been provided to the
employees of the Corporation for a long time and it is the Corporation which
has been from time to time, taking steps to provide the said services. The
canteen committees, the Co- operative Society of the employees and the
contractors have only been acting for and on behalf of the Corporation as its
agencies to provide the said services.
The Corporation has been taking active
interest even in organising the canteen committees. It is further the
Corporation which has been appointing the contractors to run the canteens and
entering into agreements with them for the purpose. The terms of the contract
further show that they are in the nature of directions to the contractor about
the manner in which the canteen should be run and the canteen services should
be rendered to the employees. Both the appointment of the contractor and the
tenure of the contract is as per the stipulations made by the Corporation in
the agreement. Even the prices of the items served, the place where they should
be cooked, the hours during which and the place where they should be served,
are dictated by the Corporation. The Corporation has also reserved the right to
modify the terms of the contract unilaterally and the contractor has no say in
the matter. Further, the record shows that almost all the workers of the
canteen like the appellants have been working in the canteen continuously for a
long time, whatever the mechanism employed by the Corporation to supervise and
control the working of the canteen. Although the supervising and managing body
of the canteen has changed hands from time to time, the workers have remained
constant. This is apart from the fact that the infrastructure for running the
canteen, viz., the premises, furniture, electricity, water etc. is supplied by
the Corporation to the managing agency for running the canteen. Further, it
cannot be disputed that the canteen service is essential for the efficient
working of the employees and of the offices of the Corporation. In fact, by
controlling the hours during which the counter and floor service will be made
available to the employees by the canteen, the Corporation has also tried to
avoid the waste of time which would otherwise be the result if the employees
have to go outside the offices in search of such services.
The service is available to all the employees
in the premises of the office itself and continuously since inception of the
Corporation, as pointed out earlier. The employees of the Corporation have all
along been making the complaints about the poor or inadequate service rendered
by the canteen to them, only to the Corporation and the Corporation has been
taking steps to remedy the defects in the canteen service. Further, whenever
there was a temporary breakdown in the canteen service, on account of the
agitation or of strike by the canteen workers, it is the Corporation which has
been taking active interest in getting the dispute resolved and the canteen
workers have also looked upon the Corporation as their real employer and joined
it as a party to the industrial dispute raised by them. In the circumstances,
we are of the view that the canteen has become a part of the establishment of
the Corporation. The canteen committees, the co- operative society of the
employees and the contractors engaged from time to time are in reality the
agencies of the Corporation and are, only a veil between the Corporation and
the canteen workers. We have, therefore, no hesitation in coming to the
conclusion that the canteen workers are in fact the employees of the
Corporation.
In Employers in relation to the Management of
Reserve Bank of India vs Workmen [(1996) 3 SCC 267], after adverting to all
those principles, it was held on facts established therein that in the absence
of any statutory or other legal obligation and in the absence of any right in
the Bank to supervise and control the work or details thereof in any manner
regarding the canteen workers employed in the three types of canteens, it
cannot be said that the relationship of master and servant existed between the
bank and the various persons employed in three types of canteens. The demand
for regularisation was considered to be unsustainable since the workers could
not substantiate the existence of relationship of employer-employee.
In Indian Petrochemicals Corporation
Ltd.& Anr. vs Shramik Sena & Ors. [(1999) 6 SCC 439] the claim of
workmen of statutory canteen managed by a Contractor fell for consideration and
while explaining LIC case (Supra) and following the decision in MMR Khans case
(Supra) and Reserve Banks case (Supra), it was held that the deemed employment
of such workers is only for the purposes of the Factories Act and not for all
purpose, because the Factories Act, as such, does not govern the rights of
employees with reference to recruitment seniority, promotion, retirement
benefits etc., which invariably and otherwise are governed by other Statues,
Rules, Contracts or Policies.
Consequently, it was observed, the contention
of the workmen that employees of a statutory canteen ipso facto became the
employees of the establishment for all purposes, cannot be accepted and the
said question depended upon the further and other materials placed on record,
which when cumulatively considered in that case, established the factual
position that: (a) The canteen has been there since the inception of the
appellants factory.
(b) The workmen have been employed for long
years and despite a change of contractors the workers have continued to be
employed in the canteen.
(c) The premises, furniture, fixture, fuel,
electricity, utensils etc. have been provided for by the appellant.
(d) The wages of the canteen workers have to
be reimbursed by the appellant.
(e) The supervision and control on the
canteen is exercised by the appellant through its authorised officer, as can be
seen from the various clauses of the contract between the appellant and the
contractor.
(f) The contractor is nothing but an agent or
a manager of the appellant, who works completely under the supervision, control
and directions of the appellant.
(g) The workmen have the protection of
continuous employment in the establishment.
This Court further held that since the
services of such workmen are being regularised by the Court not as a matter of
right of the workmen arising under any statue, but with a view to eradicate
unfair labour practices and as a measure of labour welfare to undo social
injustice, it was but necessary, at times, to issue appropriate directions or
guidelines and conditions, subject to which such regularisation of services
have to be made, depending upon facts of each case.
Mr. S. Ganesh, learned counsel for the
appellant-Bank, while placing stress on one or the other of the facts
disclosed, contended that the canteen employees in the present case cannot be
considered to be employees of the Bank, judged in the context of the principles
laid down in Indian Petro chemicals case (Supra). Strong reliance was also
placed upon the decision in Reserve Banks case (Supra) by further contending
that the staff canteen of the appellant-Bank was similar to the one found run
in that case. By adverting to the fact that between 26.4.90 and 21.10.92 there
was no staff canteen in the appellant Bank, it is claimed to sufficiently
indicate that the canteen facilities are not a condition of service of the
employees of this Bank. An apprehension has also been expressed while
submitting that if the claim of the canteen workers in this case is upheld, the
appellant-Bank would have to face similar claims made by every employee of the
canteen run everywhere and even subsequently by various contractors, for the
similar reason that the Bank had provided subsidy either in cash or kind or in
both to facilitate the running of a staff canteen. We may point out even at
this stage that this type of submission based on apprehensions came to be
rejected even in MMR Khans case (Supra) as an argument in terrorem, and that if
really the workers are entitled to the status they are claiming, they cannot be
deprived of such status merely because some other employees similarly or
dissimilarly situated may also claim the same status.
Lastly, it was urged that in any event the
appropriateness of awarding compensation in lieu of the claim for employment
may also be considered.
Mr. S. Ravindra Bhat, learned counsel
appearing for the workmen, invited our attention to the factual findings
recorded by the Tribunal, which had its approval of the Division Bench noticed
by us supra, and vehemently contended that the learned Single Judge committed a
grave error in undertaking for himself the re-appreciation of facts as though
exercising an appellate jurisdiction, even ignoring certain vital aspect of
facts and belittling the relevance and importance of portions of evidence
strongly relied upon by the Industrial Tribunal in support of the factual
findings recorded by it and that the Division Bench rightly interfered with his
order for valid and justifying reasons.
According to the learned counsel, the order
under appeal does not call for any interference, in view of the principles laid
down by this Court in the various judgments noticed above - the decision in the
question being always one ultimately depending upon the peculiar facts of each
case and categorically found in this case in favour of the workmen by the fact-
finding authority.
The learned Single Judge seems to have
undertaken an exercise, impermissible for him in exercising writ jurisdiction,
by liberally re- appreciating the evidence and drawing conclusions of his own
on pure questions of fact, unmindful, though aware fully, that he is not
exercising any appellate jurisdiction over the awards passed by a Tribunal,
presided over by a Judicial Officer. The findings of fact recorded by a
fact-finding authority duly constituted for the purpose and which ordinarily
should be considered to have become final, cannot be disturbed for the mere
reason of having been based on materials or evidence not sufficient or credible
in the opinion of the writ Court to warrant those findings, at any rate, as
long as they are based upon some material which are relevant for the purpose or
even on the ground that there is yet another view which can be reasonably and
possibly be taken. The Division Bench was not only justified but well merited
in its criticism of the order of the learned Single Judge and in ordering
restoration of the Award of the Tribunal. On being taken through the findings
of the Industrial Tribunal as well as the order of the learned Single Judge and
the judgment of the Division Bench, we are of the view that the Industrial
Tribunal had overwhelming materials which constituted ample and sufficient
basis for recording its findings, as it did, and the manner of consideration
undertaken the objectivity of approach adopted and reasonableness of findings
recorded seem to be unexceptionable. The only course, therefore, open to the
Writ Judge was to find out the satisfaction or otherwise of the relevant
criteria laid down by this Court, before sustaining the claim of the canteen
workmen, on the facts found and recorded by the fact-finding authority and not
embark upon an exercise of re-assessing the evidence and arriving at findings
of ones own, altogether giving a complete go-bye even to the facts specifically
found by the Tribunal below.
The standards and nature of tests to be
applied for finding out the existence of Master and Servant relationship cannot
be confined to or concretised into fixed formula(s) for universal application,
invariably in all class or category of cases. Though some common standards can
be devised, the mere availability of anyone or more or their absence in a given
case cannot by itself be held to be decisive of the whole issue, since it may
depend upon each case to case and the peculiar device adopted by the employer
to get his needs fulfilled without rendering him liable.
That being the position, in order to
safeguard the welfare of the workmen, the veil may have to be pierced to get at
the realities. Therefore, it would be not only impossible but also not
desirable to lay down abstract principles or rules to serve as a ready reckoner
for all situations and thereby attempt to compartmentalise and peg them into
any pigeonhole formulas, to be insisted upon as proof of such relationship.
This would only help to perpetuate practising unfair labour practices than
rendering substantial justice to the class of persons who are invariably
exploited on account of their inability to dictate terms relating to conditions
of their service. Neither all the tests nor guidelines indicated as having been
followed in the decisions noticed above should be invariably insisted upon in
every case, nor the mere absence of any one of such criteria could be held to
be decisive of the matter. A cumulative consideration of a few or more of them,
by themselves or in combination with any other rele1vant aspects, may also
serve to be the safe and effective method to ultimately decide this often
agitated question.
Expecting similarity or identity of facts in
all such variety or class of cases involving different type of establishments
and in dealing with different employers would mean seeking for things, which
are only impossible to find.
The decision in Indian Petrochemicals case
(Supra) does not, in our view, lay down any different criteria than those
declared in the other decisions for adjudging the issue, except that it had
also considered specifically the further question as to the effect of a
declaration, that the workers of a particular canteen, statutorily obligated to
be run render no more than to deem them to be workers for the limited purpose
of the Factories Act and not for all purposes. In the case before us, the claim
is not that there was any such statutory obligation and the entire
consideration proceeded only on the footing that it is a non-statutory
recognised canteen falling within the second of the three categories envisaged
in the earlier decisions and the Tribunal as well as the Division Bench of the
High Court endeavoured to find out whether the obligation to run was explicit
or implicit, on the facts proved in this case.
The factual findings recorded by the Tribunal
and the Division Bench as also the materials relied upon therefor, have been already
set out in detail, supra and it is unnecessary to refer to them in greater
detail once over again. The canteen in question was being run from 1.1.73 and
even before that, indisputably, the Bank itself had arranged for running of the
same through a contractor and similar arrangement to run through a contractor
was once again made by the Bank on its closure on 26.4.90, though after a
period of some break from 21.10.92. Besides this, the nature and extent of
assistance, financial and otherwise in kind, provided which have been
enumerated in detail, would go to establish inevitably that the Bank has
unmistakably and for reasons obvious always undertaken the obligation to
provide the canteen services, though there may not be any statutory obligation
and it will be too late to contend that the provision of canteen had not become
a part of the service conditions of the employees. The materials placed on
record also highlight the position that the Bank was always conscious of the
fact that the provision and availing of canteen services by the staff are not
only essential but would help to contribute for the efficiency of service by
the employees of the Bank. That it was restricted to the employees only, that
the subsidy rate per employee was being also provided, and the working hours
and days of the canteen located in the very Bank buildings were strictly those
of the Bank and the further fact that no part of the capital required to run
the same was contributed by anybody self, either the Promoters or the staff using
the canteen are factors which strengthen the claim of the workers. It was also
on evidence that the canteen workers were enlisted under a welfare fund scheme
of the Bank besides making them eligible for periodical medical check up by the
doctors of the Bank and admitting them to the benefits of the Provident Fund
Scheme. The cumulative effect of all such and other facts noticed and
considered in detail provided sufficient basis for recording its findings by
the Tribunal as well as the Division Bench of the High Court ultimately to
sustain the claim of the workers, in this case.
The learned Single Judge seems to have not
only overlooked certain relevant material but by adopting a negative approach
had belittled the relevance and importance of several vital and important
factual aspects brought on record. If on the facts proved, the findings
recorded by the Tribunal are justified and could not be considered to be based
upon `no evidence, there is no justification for the High Court in exercising
writ jurisdiction to interfere with the same. The promoters of the canteen
being permanent employees in the service of the Bank, permitted to run the
canteen, by merely being in control of the day-to-day affairs of the canteen,
the Bank cannot absolve of its liabilities when it was really using the canteen
management as its instrumentality and agent. The cloak apart, the `voice
definitely is that of Jacobs. Consequently, we could neither find any error of
law or other vitiating circumstances in the judgment of the Division Bench nor
any infirmities in the process of reasoning or gross unreasonableness and
absurdities in the conclusions arrived at to restore the Award, so as to
justify and warrant our interference in the matter.
The claim of the appellants to consider the
question of awarding compensation than to allow them to be reinstated, does not
also appeal to us. The canteen services have to be necessarily provided
throughout for the staff and the Bank can always utilise the services of the
workers for the purpose and there is no justification to deny them of the hard
earned benefits of their service.
For all the reasons stated above, we see no
merit in the appeals and the appeals shall stand dismissed. No costs.
Back
Pages: 1 2
