Full Judgment Text
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CASE NO.:
Appeal (civil) 1407-1409 of 1998
PETITIONER:
INDIAN OVERSEAS BANK
Vs.
RESPONDENT:
I.O.B. STAFF CANTEEN WORKERS UNION & ANR.
DATE OF JUDGMENT: 11/04/2000
BENCH:
S.S.Ahmad, Doraswami Raju
JUDGMENT:
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J U D G M E N T
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
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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 ?
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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.
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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.;
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(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:
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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
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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
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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 thereunder 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
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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.
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(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
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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
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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
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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.