TMI Blog2000 (4) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... tral 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 @ ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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 Industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples 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 becom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 compartmentali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontractor 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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