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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:

L.....I.........T.......T.......T.......T.......T.......T..J

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.