Full Judgment Text
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PETITIONER:
EMPLOYEE IN RELATION TO THEMANAGEMENT OF RESERVE BANK OF IND
Vs.
RESPONDENT:
THEIR WORKMEN
DATE OF JUDGMENT: 28/02/1996
BENCH:
PARIPOORNAN, K.S.(J)
BENCH:
PARIPOORNAN, K.S.(J)
AHMADI A.M. (CJ)
SEN, S.C. (J)
CITATION:
1996 AIR 1241 1996 SCC (3) 267
JT 1996 (3) 226 1996 SCALE (2)708
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
PARIPOORNAN,J.
Special leave granted.
2. This appeal is filed by "Employers in relation to the
Management of Reserve Bank of India (hereinafter referred to
as "the Bank") against the award of the Central Government
Industrial Tribunal NO. 1 at Bombay dated 28.2.1995 and
rendered in Ref. No. CGIT-96 of 1991. The workmen engaged in
the catering establishments of the bank is the respondent in
this appeal.
3. Government of India, by letter dated 13.12.1991,
referred the following dispute for adjudication under
section 10(1) (d) read with sub-section 2A of the Industrial
Disputes Act, 1947 to the Tribunal:
"Whether 166 employees engaged in
various catering establishments of
the Reserve Bank of India at Bombay
are the workmen of the Reserve Bank
of India? If so, whether their
demand for regularization with
retrospective effect was justified?
If so, the extent of relief payable
to these 166 persons may be
indicated."
4. The employer -- Reserve Bank of India is a Corporation
established under the Reserve Bank of India Act, 1934 (No.
2) and vested with some sovereign functions such as issue of
currency notes etc. It acts as Bankers’ Bank and as Banker
to the Central and State Governments. For carrying on the
business, the Bank employs various categories of staff such
as Officers (Class-I), (Class-II), Clerks, Stenographers,
Typists etc. (Class III) and Peons, Mazdoors etc. (Class-
IV). The Bank has been providing canteen facilities to its
employees in Classes III and IV. The Reserve Bank "Lounge"
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caters to the needs of its officers at some centers. There
is no obligation either under any statute or otherwise, for
the Bank to run the canteens. It is so done only as a
welfare measure. The Bank bears by way of subsidy to the
extent of 95% of the costs incurred by the canteens for
payment of salary, provident fund contribution, gratuity,
uniform etc., and also provides premises, fixtures,
utensils, furniture, electricity, water etc., free of
charges. It is seen that the canteens are run either by
"Implementation Committee (Canteen Committee)" or "Co-
operative Societies" or "contractors". As stated, such
canteens are soley for Class III and Class IV employees of
the Bank. The Bank has its office at Amar building, Fort,
Bombay wherein 1500 employees are working. Similarly, the
Bank has its office at Bycula and another office at Bandra,
Kurla Complex Building. In each of the latter places 1000
persons are employed.
5. It has come out in evidence that the constitution and
functioning of the aforesaid canteens for Class III and
Class IV employees and functioning at Amar Building, Byculla
Building and Bandra, Kurla Complex Building are different.
The canteen at Amar Building is managed by an Implementation
Committee (Canteen Committee). It is functioning ever since
1959. The canteen Committee consists of four representatives
from the Class IV employees Union, five representatives from
the Class III employees Union and three representatives from
the Bank. The three representatives of the Bank are the
Currency Officer, Personnel Officer and the Officer from the
Personal Policy Department. The Currency Officer is always
the Chairman of the Canteen Committee. About 77 workmen are
employed in the said canteen.
At Byculla the Bank is running a canteen through a Co-
operative Society since 1989. 25 workmen are employed
therein. One of the employees of the Bank, who is a member
of the Managing Committee of the Society, is relieved of his
work for the whole day to lock after or supervise the work
of the canteen. The Bank reimburses the Society the charges
incurred for getting the licences under the Shops and
Establishments Act. Prior permission of the Bank is required
to increases the strength of the employees.
In the Bank office at Bandra, Kurla Complex and the one
situate at New Central office building canteen contractors
are engaged. In the Bandra Kurla Complex/Building, M/s. N.T.
Shetty the contractor has employed 21 persons. In the new
Central Office building, the contractor M/s. Alva Caterer
has employed 35 persons. (The total number of persons
employed in all the canteens amount to only 158, though the
case has proceeded on the basis that there are ’166’
persons).
6. The point at issue between the parties is whether the
persons working in the various canteens aforesaid are
employees of the Reserve Bank of India. The plea of the
Federation on behalf of the workmen is that the Bank is
under a statutory obligation to provide canteen facility to
the employees and the same is being done through agencies
such as Implementation Committee (Canteen Committee), Co-
operative Society and contractor instead of the Bank doing
it on its own by employing persons directly. On behalf of
the workmen, it was further contended that the Bank cannot
shift its responsibility to others, that the entire economic
control is With the bank and so the worker. employed in all
these canteens, whether by the Implementation Committee or
by the Co-operative Societies or by the contractors should
be directed to be absorbed with retrospective effect with
point to point adjustment and the Bank be directed to pay
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difference of wages.
7. The Bank disputed the claim made by the Federation on
behalf of the workmen. It was contended that the Bank makes
available space for running the canteens on leave and
licence basis and various facilities are also provided to
the Implementation Committee, Co-operative Society or the
contractor, whosoever runs the canteen. The canteens are in
the nature of clubs. The management of the Bank is not
responsible for employment of persons in the canteens.
Persons serving in the canteens are employed by the
Implementation Committee, the Co-operative Society or the
Contractor, as the case may be.
The Bank does not supervise or control the working of
the canteens or the supply of eatables to employees. The
employees are not under an obligation to purchase eatables
from the canteen. There is no relationship of master and
servant between the Bank and the various persons employed in
the canteens aforesaid. The Bank does not carry any trade or
business in the canteens. The staff canteens are established
only as a welfare measure. Similar demands made by the staff
canteen employees and the request made to the Central
Government to refer the dispute for adjudication was
rejected by the Central Government and the challenge against
the same before the Calcutta High Court was unsuccessful.
According to the Bank, it has no statutory or other
obligation to run the canteens and it has no direct control
or supervision over the employees engaged in the canteens.
It has no right to take any disciplinary action or to direct
any canteen employee to do a particular work. The
disciplinary control over the persons employed in the
canteens does not vest in the Bank nor has the Bank any say
or control regarding the allocation of work or the way in
which the work is carried out by the said employees.
Sanctioning of leave, distribution of work, maintenance of
the Attendance Register are all done either by the
Implementation Committee (Canteen Committee) or by the Co-
operative Society or by the contractor.
8. The Tribunal, on the basis of the materials available
before it and on hearing the parties, held that 166 persons
mentioned in the list attached to the reference and employed
in various canteens are employees of the Reserve Bank of
India and they are entitled to appropriate relief in that
behalf. An award was passed affording relief to 166
employees working in the various canteens in the following
terms:
"From the nature of the work that
is being performed by the 166
persons mentioned in the list
attached to the reference it is
seen that they have comparable
employees employed in the Officers
lounge. The exercise of fitting of
these 166 employees in the
corresponding categories will have
to be carried out by the Reserve
Bank of India, that they will have
to be paid difference in ways which
they would have earned and which
they have been paid. As can be seen
from the Annexure ’A’ to the
statement of claim certain
categories of employees are clubbed
together for the purposes of pay
scale. The Assistant cook, tea boys
& farash is one such clubbing,
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Supervisor and coupon clerk is
another. ... ... ... ... ... ...
... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ...
The just direction in my view would
be that they will be entitled to
absorption and difference in back
wages with effect from 1st of March
1995. In respect of employees who
are working in the canteens run
through the contractors they will
be entitled to the benefit with
effect from the date the respective
contracts come to an end."
It is the aforesaid award that is assailed by the Bank in
this appeal filed by Special Leave.
9. A perusal of the award passed by the Tribunal as a
whole shows, that in its view the plea raised by the workmen
employed in various canteens clearly falls within the ratio
laid down by this Court in M.M.R. Khan v. Union of India
[1990 (Supp.) SCC 191] and so they are entitled to the
reliefs prayed for. We are of the view that the Tribunal
misread and misunderstood the decision in M.M.R. Khan’s case
(supra) and has misapplied the ratio laid down in the said
decision to the instant case. Therefore, a review of the
said decision and the extent to which the principles or
ratio laid down therein can be said to be applicable in the
instant case calls for a detailed analysis and we shall
advert to the said aspect a little later.
10. One aspect is clear. The Reserve Bank of India (the
bank) is under no statutory or other legal obligation to
provide canteen facilities to its employees. The Tribunal
has not found any such statutory or legal obligation in the
Bank. That apart, we have to bear in mind the following
salient feature in the matter of recruitment of staff by the
Banks. It is a well known fact that recruitment of staff
(inclusive of class-IV) to the banks is done by a Selection
Board, and there are guidelines governing the process of
selection. So also in the case of Reserve Bank of India, the
process of selection and recruitment of the staff is by a
different Board and appropriate qualifications are
prescribed for the particular posts. In the case of persons
employed in the canteens, they are not subject to the rigor
and discipline of the above rules and methods of selection.
This distinguishing feature is relevant in adjudicating the
controversy raised herein. The Tribunal has held that (1)
Regarding canteens run by the Implementation Committee, the
Bank exercises "remote control", which is as effective as
any, (para 26 of the award); (2) Regarding the canteens run
by Co-operative Societies, the Tribunal has held that they
are non-statutors but recognised canteens and by nominating
the representative of the bank to the Committee, it
exercises control (para 28 of the Award); (3) Regarding the
canteens run by contractors, "non-statutory", "non-
recognised canteens", in the absence of distinguishing
features highlighted in para 38 of the decision M.M.R.
Khan’s case (supra), they could be said to be "recognised
canteens" by the Bank and the persons employed by the
contractors are also entitled to the benefit similar to the
one afforded to persons employed in the canteens run by the
Implementation Committee and Co-operative pocieties (para 32
of the award). The question that falls for our consideration
is whether the aforesaid view of the Tribunal is justified
in law, holding that the instant case is covered by the
decision of this Court in M.M.R. Khan’s case (supra).
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11. The test to determine as to whether a person is a
workman and the relationship of master and servant exists in
a particular case has been laid down by this Court in
innumerable decisions. In one of the earliest oft quoted
cases, Dharangadhra Chemical Works Ltd. v. State of
Saurashtra and others (AIR 1957 SC 264), delivering the
judgment of the four-member Bench, Bhagwati, J. considered
in detail the various decisions on the point and laid down
the law thus:
"The principle which emerges from
these authorities is that the Prima
facie test for the determination of
the relationship between master and
servant is the existence of the
right in the master to supervise
and control the work done by the
servant not only in the matter of
directing what work the servant is
to do but also the manner in which
he shall do his work or to borrow
the words of Lord Uthwatt at page
23 in Mersey Docks and Harbour
Board v. Coggins & Griffith
(Liverpool) Ltd., 1947-I AC 1, at
page 23(E), "The proper test is
whether or not the hirer had
authority to control the manner of
execution of the act in question."
The nature or extent of
control which is requisite to
establish the relationship of
employer and employee must
necessarily vary from business to
business and is by its very nature
incapable of precise definition.
... ... ...
The correct method of
approach, therefore, would be to
consider whether having regard to
the nature of the work there was
due control and supervision by the
employer"............"
(Emphasis supplied)
In the case of persons employed in the canteens, they are
not subject to the rigour and discipline of the above rules
and methods of selection. This distinguishing feature is
relevant in adjudicating the controversy raised herein. The
Tribunal has held that (1) Regarding canteens run by the
Implementation Committee, the Bank Exercises "remote
control", which is as effective as any, (para 26 of the
award); (2) Regarding the canteens run by Co-operative
Soceities, the Tribunal had held that they are non-statutory
but recognised canteens and by nominating the representative
of the bank to the Committee, it exercises control (para 28
of the Award); (3) Regarding the canteens run by
contractors, "non-statutory", "non-recognised canteens", in
the absence of distinguishing features highlighted in para
38 of the decision M.M.R. Khan’s case (supra), they could be
said to be ":recognised canteens" by the Bank and the
persons employed by the contractors are also entitled to the
benfit similar to the one afforded to persons employed in
the canteens run by the Implementation Committee and Co-
operative socieities (para 32 of the award). The question
that falls for our consideration is whether the aforesaid
view of hte Tribunal is justified in law, holding that the
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instant case is covered by the decision of this Court in
M.M.R. Khan’s case (supra).
The above decision was followed by a three member Bench in
Chintaman Rao v. State of M.P. (AIR 1958 SC 388). In this
decision the Court also observed at page 392, paragraph 10,
thus:
"There is, therefore, a clear-
cut distinction between a
contractor and a workman. The
identifying mark of the latter is
that he should be under the control
and supervision of the employe in
respect of the details of the
work."
(Emphasis supplied)
In Management of M/s. Puri Urban Co-operative Bank v.
Madhusudhan Sahu [1992(2) SCR 977], delivering the judgment
on behalf of the Bench, Punchhi, J. at page 980, after
referring to the aforesaid decisions, stated thus:
"It stands established that
Industrial law revolves on the axis
of master and servant relationship
and by a catena of precedents it
stands established that the prima
facie test of relationship of
master and servant is the existence
of the right in the master to
supervise and control the work done
by the servant (the measure of
supervision and control apart) not
only in the matter of directing
what work the servant is to do but
also the manner in which he shall
do his work. And this Principle
holds the field".
(Emphasis supplied)
12. In applying the law laid down by this Court, as stated
above, we should distinguish those line of cases, where a
statutory liability is cast on the employer for maintaining
the canteen viz. as per Section 46 of the Factories Act or
due to the extended meaning given to the definition of the
word ’employer’ in the particular statute, any other person
like a contractor to whom an owner of the undertaking had
entrusted the execution of any work which was ordinarily
part of an undertaking or industry was also covered. See in
this connection Saraspur Mills Co. Ltd. v. Ramanlal
Chimanlal [1974(3) SCC 66] and Basti Sugar Mills Ltd. v. Ram
Ujagar (AIR 1964 SC 355). We should at once state that the
principles laid down in those line of cases cannot apply
herein, since admittedly (a) no statutory liability is cast
on the Bank to run a canteen and Section 46 of the Factories
Act is inapplicable herein; and (b) the Industrial Disputes
Act does not contain an extended definition of the word
employer’.
13. We heard Mr. Salve, Senior Counsel who appeared for the
appellants and Mr. Tarkunde, Senior Counsel who appeared for
the respondent.
14. We Shall now advert to the decision of this Court in
M.M.R.Khan’s case (supra) to understand its scope and
effect. In the said case, the court was dealing with the
workers in canteens run in the different railway
establishments. The workers claimed that they should be
treated as "railway employees" and should be extended all
service conditions which are available to the railway
employees. The court classified the canteens into three
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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
canteens are established with the prior approval and
recognition of the Railway Board as per the procedure
detailed in the Rail was Establishment Manual; and (3) Non-
statutory Non-recognised Canteens - these are canteens
established without the prior approval or recognition of the
Railway Board.
Category No.1: statutory Canteens: This Court in Civil
Appeal No. 368 of 1978 dated 22.10.1980 had held that the
employees in the statutory canteens were railway employees
for the purpose of the Factories Act. In the said decision,
this Court declined to interfere with the rejection of the
demand of the workers for pay and allowances to them as if
they were railway employees. As a result of subsequent
orders passed by the government, Railway Board and the
decision of this Court and instructions of the department,
it became evident that the government has complete control
over the canteens and the workers employed therein became
holders of civil posts within the meaning of Article 311 of
the Constitution. Their recruitment and service conditions
are governed by the rules applicable to the employees of the
government department/office/establishment to which the
canteens are attached. In this background, the Court
adverted in detail to the various government orders and
circulars of the Railway Board vis-a-vis section 45 of the
Factories Act and held that the employees in the "statutory
canteens" of the railways will have to be treated as
"railway servants". It was further observed that the
employees in the statutory canteens are entitled to the
status of railway employees and they are entitled to succeed
in their claim purely on facts peculiar to them discussed in
the judgment.
Dealing with the second category - "Nonstatutory
Recognised Canteens", the Court adverted to paragraphs 2831
to 2834 of the Railway Establishment Manual and held that
the aforesaid provisions enjoin the Railway Administration
to take steps to develop their canteen organization to the
maximum possible extent as a measure of staff welfare
preferably by encouraging the development of canteens for
staff on co-operative basis. This mandate was stated to be
in addition to the canteens required to be established by
the Factories Act. On a review of the various provisions of
the Railway Establishment Manual the details whereof were
adverted to in paragraphs 31 to 35 of the judgment) and
proceedings of courts, it was hand in paragraph 36 of the
judgment that there is hardly any difference between the
statutory canteens and non-statutory recognised canteens.
Detailed provisions of the Railway Establishment Manual were
highlighted to show that the obligations of the Board under
the Manual are substantially similar to those enjoined under
the Factories Act and no distinction can be made between the
employees of the two types of canteens -- statutory canteens
and non-statutory recognised canteens -- so far as their
service conditions are concerned. So, it was further held
that the employees in the non-statutory recognised canteens
should be treated on par, with those employees in the
statutory canteens and they should be treated for all
purposes as railway servants.
Dealing with the category of persons employed in the
"non-statutory non-recognised canteens", in paragraph 38 of
the judgment, this Court highlighted the fact that they were
not started with the prior approval of the Board as required
under paragraph 2831 of the Railway Establishment Manual.
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They are not required to be managed either as per the
provisions of the Railway Establishment Manual or the
administrative instructions. There is no obligation on the
railway administration to provide them with any facility nor
are they given any subsidy or loan. The canteens are run by
private contractors and there is ne continuity either of the
contractors or the workers engaged by them. There is further
no obligation cast even on the local officers to supervise
the working of these canteens, there existed no rules for
recruitment of the workers and their service conditions, and
the canteens are run on ad hoc basis; and in these
circumstances it was held that he workers engaged in these
canteens are not entitled to claim the status of the railway
servants.
15. We have held earlier that there is no statutory or
other obligation for the bank to run canteens. The
provisions of the Factories Act do not apply. So, we are
only concerned with categories 2 and 3 (Non-statutory
Recognised Canteens and Non-Statutory Non-recognised
Canteens) dealt with in M.M R. Khan’s case (supra). It
should be remembered that the plea of the canteen workers of
three categories in M.M.R. Khan’s case (supra) was that they
were railway servants. With regard to the Non-statutory
Recognised Canteens, on an appraisal of the relevant
paragraphs of the Railway Establishment Manual, the
notifications and circulars issued by the Board from time to
time and the orders passed by courts, this Court held that
there is hardly any difference between the statutory
canteens and Nonstatutory Recognised Canteens and no
distinction is possible between the employees of the two
types of canteens so far as their service conditions are
concerned. Indeed in a later decision of this Court in
Parimal Chandra Raha vs. Life Insurance Corporation of India
(JT 1995 (3) SC 288) at page 304, in paragraph 26 of the
judgment, this Court highlighted the fact that M.M.R. Khan’s
case (supra) which had decided the claim of the Non-
statutory Recognised Canteens was decided on the facts of
that case including the provisions of the Railway
Establishment Manual, the notifications and circulars
issued by the Railway Board from time to time and other
documents. The non-statutory recognised canteens were also
to be on par with the statutory canteens in view of the
mandate contained in paragraphs 2830 to 2834 of the Railway
Establishment Manual. In our opinion, the said reasoning
and conclusion of this Court in M.M.R. Khan’s case (supra)
rested on its own facts.
16. Similarly, dealing with the plea of the various persons
engaged in the non-statutory non recognised canteens, that
they are entitled to get the status of the railway servants,
it should be stated that the plea was negatived in paragraph
38 of the judgment by reference to the provisions of the
Railway Establishment Manual and other administrative
instructions. Here again the decision rested on its own
facts.
17. Before the Tribunal, on behalf of the canteen employees
the decision of the Central Government Industrial Tribunal
at Calcutta Ref.No. 63/75 in a matter between the State Bank
of India and their workmen and the decision of the Bombay
High Court in W.P. 933/90 were relied on as supporting their
plea. On the other hand, the Bank relied on the decision of
the Calcutta High Court in civil order No. 11488/W/83,
wherein the plea of the employees of Co-operative canteens
as workmen of the Reserve Bank of India was rejected, for
reference. A decision of the Bombay High Court in W P.
610/82 to similar effect was also relied on. We do not have
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all the relevant papers and documents as also the complete
text of the decision in those cases to appreciate the
reasoning and conclusion arrived at in those cases. So we do
not propose to deal with them. If at all, it is the latter
decisions of Calcutta and Bombay High Courts which seem to
be more in point.
18. Now we have to examine the reasons which persuaded the
Tribunal in this case to hold that the instant case falls
within the ratio laid down by this Court in M.M.R. Khan’s
case (Supra). In all the three different categories of
canteens -- canteens run by the implementation committee
(Canteen Committee), Co- operative Societies and Contractors
-- the Bank was making grants by way of subsidy at 95% of
the costs incurred by the canteens for payment of salary,
P.F. contribution, gratuity, Uniform etc., besides providing
fuel, water, fixtures, utensils, furniture, electricity,
premises etc., free of charge. We will take up the
individual facts highlighted by the Tribunal in respect of
the different categories of canteens. When the question
between the employees in relation to Reserve Bank of India
and their class III workmen came up before Justice Sri
Dinghe on a reference, on an earlier occasion, the Bank had
submitted that adequate canteen facilities are available to
the employees of the Bank and that the Bank has provided
facilities in that regard. Regarding the canteen run by the
Implementation Committee (Canteen Committee), out of the 12
representatives 3 of them are from the bank -- the Currency
Officer, Personnel Officer and the Officer from the Personal
Policy Department. The Currency Officer is always the
Chairman of the Canteen Committee. The Bank relieved four
employees who are in the Committee, two for full day and two
for half day to supervise the day to day affairs of the
canteen. The committee cannot increase the strength of the
canteen employees without the permission of the bank. The
rates of the eatables also cannot be revised without the
consent of the Manager. They cannot effect any wage revision
without the approval of the Bank. The Bank is also
reimbursing the expenses incurred over the periodical
medical check up cf the employees attached to the kitchen
and counters. In these circumstances, the Tribunal held that
the case clearly falls within the ratio laid down by this
court in M.M.R. Khan’s case (supra), since the Bank
exercises "remote control" which is as effective as any. As
against the above aspects, the fact remains that according
to the Bank it has only a limited role to play regarding the
functioning of the committee and do not have any control
whatsoever on the employees engaged by the committee so far
as taking of disciplinary action against any particular
employee is concerned. The Bank has further brought out in
cross-examination of the employees’ representative that the
recruitment of the workers for the canteen is made by the
Canteen Committee, and the attendance record as well as the
sanctioning of leave to the workers is done by the
committee. It was also brought out in evidence that the only
role played by the Bank in the running of the canteen was
the nomination of the three members to the committee. It is
common ground that the canteen run by the Implementation
Committee (Canteen Committee) is not under any legal
obligation as was the case in M.M.R. Khan’s case (supra).
Moreover, there is no right in the Bank to supervise and
control the work done by the persons employed in the
committee nor has the Bank any right to direct the manner in
which the work shall be done by various persons. The Bank
has absolutely no right to take any disciplinary action or
to direct any canteen employee to do a particular work. Even
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according to the Tribunal, the Bank exercises only a ’remote
control’. We are of the view that in the absence of any
obligation statutory or otherwise regarding the running of a
canteen by the Bank and the details relating thereto similar
to Factories Act or the Railway Establishment Manual, and in
the absence of any effective or direct control in the Bank
to supervise and control the work done by various persons,
the workers in the canteen run by the Implementation
Committee (Canteen Committee) cannot come within the ratio
laid down by this Court in M.M.R. Khan’s case (supra).
19. We shall now take up the case of canteens run by the
Co-operative Societies. Apart from subsidy, and other
matters provided free of charge like water, electricity,
premises, furniture etc., the Tribunal has adverted to the
fact that the licence renewal charges paid by the committee
are reimbursed by the Bank. Neither the strength of the
workmen employed, nor the wages can be revised without the
prior sanction of the Bank and so these canteens, are non-
statutory recognized canteens, and there is direct control
exercised by the Bank in the form of nominating the
representative of the Bank. Here again none of the peculiar
aspects adverted to by this Court in M.M.R. Khan’s case
(supra) regarding the non-statutory recognized canteens are
present. The mere fact that the Bank nominates its
representative the committee or reimburses the licence
renewal charges will not in any way provide any direct
control.
20. we will now take up the matter regarding the non-
statutory non-recognised cnateens. In dealing with this
matter, the Tribunal has referred to the various aspects
stressed in paragraph 38 of the judgment in M.M.R. Khan’s
case (supra) that the workmen therein are not railway
servants. The Tribunal has adverted to the agreement
executed between the Bank and the contractor which,
according to it, will show that the distinguishing features
mentioned in M.M.R. Khan’s case (supra) are not present in
this case. It may be so. That leads us to no positive
conclusion regarding the matter at issue. As per the
agreement the bank has detailed the subsidy and other
facilities afforded by it to run the canteen and ha also
stipulated certain conditions necessary for conducting the
canteen in a good, hygenic and efficient manner like
insistence of the quality of food, supply of food,
engagement of experienced persons etc. Such conduct cannot
in any manner point out any obligation in the Bank to
provide "canteen" as wrongly assumed by the Tribunal. Since
the distinguishing features mentioned in M.M.R. Khan’s case
(supra) are not present in this case, the Tribunal by a
negative process was inclined to hold that though the
canteens may be non-statutory and non-recongised in nature,
they ’could be said to be’ non-statutory recognised ones and
so they will be entitled to get all the benefits like the
recognised canteens. This is a wrong approach to the issue.
We have already held that non-statutory recognised canteens
in the instant case are not similar to the non-statutory
recognised canteens considered in M.M.R. Khan’s case
(supra). If the workers in the non-statutory recognised
canteens themselves cannot be considered to be workmen under
the Bank, by the same token, the workers employed by the
contractors, even if they are considered to be nonstatutory
recognised canteens as held by the Tribunal, will not be
entitled to get any benefit. It is only by holding that the
canteens run by contractors are similar to non-statutory
recognised canteens, the Tribunal has given the same
benefit, as was given to the workmen in the recognised
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canteens. It should also be noticed that the various factors
noticed in paragraph 38 of the judgment in M.M.R. Khan’s
case (supra) were adverted to by this Court to deny the plea
that the canteen workers "are not railway servants" in the
context of the various provisions contained in the Railway
Establishment Manual and other documents. The said decision
rested on its own facts.
21. We, therefore, hold that the assumption made by the
Tribunal that the instant case clearly falls within the
ratio laid down by this Court in M.M.R. Khan’s case (supra),
is totally unjustified and incorrect. On the facts of this
case, 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 the 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. 166
persons mentioned in the list attached to the reference are
not workmen of the Reserve Bank of India and that they are
not comparable employees employed in the officers lounge.
Therefore, the demand for regularization is unsustainable
and they are not entitled to any relief. We hold that the
award passed by the Tribunal is factually and legally
unsustainable.
22. Before concluding the case, we should advert to the
decision of this Court reported in Parimal Chand a Raha v.
Life Insurance Corporation of India (Supra) brought to our
notice. Both sides extensively referred to this judgment to
reinforce their plea. After adverting to the earlier
decisions, this Court has summarized the law in paragraph 27
of the impugned thus:
"What emerges from the statute law
and the judicial decisions is as
follows:
(i) Where, as 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 pursuance
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
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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 tc 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
serivce/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."
Counsel for the appellant Mr. Salve submitted that
propositions No. 3 and 4 contained in paragraph 27 of the
judgment are very wide and require reconsideration and
appropriate modification, whereas Mr. Tarkunde, Counsel for
respondents submitted that propositions No. 3 and 4 May down
the law correctly. It is unnecessary, on the facts of this
case, to consider to what extent propositions No. 3 and 4
require to be clarified or modified, since in this case the
Tribunal has proceeded only on the basis that the instant
case clearly falls within the ratio laid down by this Court
in M.M.R. Khan’s case (supra), which we have held is a
totally wrong perspective. In these circumstances, we are
not called upon to consider the rival pleas regarding the
scope and ambit of propositions No. 3 and 4 contained in
para 27 of the Judgment in Parimal Chandra Raha’s case
(Supra).
We set aside the award passed by the Tribunal. This
appeal is allowed. There shall be no order as to costs.
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