As per case facts, an industrial dispute arose regarding the regularization of two 'Wash Boys' employed in a departmental canteen of Mahanagar Telephone Nigam Ltd. Despite continuous service, their regularization ...
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8239 OF 2019
Mahanagar Telephone Nigam Ltd.
Through General Manager (South)
Sawla Chambers, 40, C. P. Street,
Fort, Mumbai 400 001. … Petitioner
V/s.
General Secretary,
Bombay Telephone Canteen Employees
Association, C/o Prabhadevi Telephone
Exchange Canteen, 1st Floor,
Dadar (West), Mumbai 400 028. … Respondent
Ms. Disha Parekh a/w Ms. Apeksha Sharma i/b NDB
Law for the Petitioner.
Mr. Vaibhav Sugdare a/w Mr. Vishwabhushan Kamble,
Mr. Shaikh Yusuf Ali & Mr. Aniesh Jadhav, for
Respondents.
Mr. Adhate & Mr. Suryawanshi, Representatives of
MTNL are present.
CORAM :AMIT BORKAR, J.
RESERVED ON :APRIL 2, 2026
PRONOUNCED ON:APRIL 9, 2026
JUDGMENT:
1.By the present Petition instituted under Article 227 of the
Constitution of India, the petitioner assails the Award dated 22
August 2017 rendered by the Central Government Industrial
Tribunal No. 2, Mumbai in Reference No. CGIT-2/154 of 1998. By
1
SHABNOOR
AYUB
PATHAN
Digitally signed by
SHABNOOR
AYUB PATHAN
Date: 2026.04.09
11:41:35 +0530
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the said Award, the Tribunal directed the management to
regularize the services of Shri Narayan M. Sanil with effect from 1
May 1982 and Shri Harish N. Poojary with effect from 1 May 1986,
and further directed payment of arrears of wages and allowances
after due adjustment of amounts already disbursed.
2.The factual matrix giving rise to the present petition
indicates that the industrial dispute was referred by the Central
Government in exercise of powers under clause (d) of sub-section
(1) read with sub-section (2A) of Section 10 of the Industrial
Disputes Act, 1947, vide Order dated 30 November 1998 issued by
the Ministry of Labour and Employment, Government of India. The
terms of reference required adjudication on the question, as to
whether the demand for regularization in service of Shri Narayan
M. Sanil and Shri Harish N. Poojary, employed as Wash Boys, was
legal and justified, and if not, the nature of relief to which the
workmen were entitled.
3.Upon receipt of the reference, the Tribunal issued notices to
the parties, who entered appearance through their respective
representatives. The Bombay Telephone Canteen Employees
Association, acting through its General Secretary, filed its
Statement of Claim asserting that the concerned workmen were
engaged as Wash Boys in the departmental canteen of Mahanagar
Telephone Nigam Ltd. situated at Saawla Chambers, Mumbai. It
was pleaded that Shri Narayan M. Sanil commenced service in
January 1981 and Shri Harish N. Poojary in January 1986, and
that both had rendered continuous service without interruption
while working against regular and permanent vacancies. It was
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further contended that despite long years of continuous service,
their services were not regularized, notwithstanding several oral
and written representations submitted to the management, which
remained unaddressed.
4.The Association further averred that, pursuant to a judgment
of the Supreme Court, a majority of canteen workers were
accorded the status of departmental employees with effect from 1
October 1991. It was contended that although the concerned
workmen were in service as on the said date, they were denied the
benefit of departmentalization and continued to receive meagre
wages without the advantages flowing from the recommendations
of the 3rd and 4th Pay Commissions. It was also stated that a
formal demand seeking regularization and grant of Pay
Commission benefits was raised on 23 September 1996 before the
General Manager (South), MTNL. In the absence of any response,
the Association approached the Regional Labour Commissioner
(Central), Mumbai by communication dated 24 July 1997, thereby
raising an industrial dispute.
5.Upon failure of conciliation proceedings, the appropriate
Government referred the dispute to the Tribunal for adjudication.
It was the case of the workmen that they became entitled to
regularization upon completion of 120 days of continuous service,
namely with effect from 1 May 1982 and 1 May 1986 respectively,
along with all consequential benefits. It is noted that initially the
management failed to appear despite due service of notice and did
not file its Written Statement, as a consequence of which an ex
parte Award came to be passed holding the demand for
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regularization to be legal and justified. Subsequently, however, the
reference was restored pursuant to an order passed in
Miscellaneous Application No.CGIT No. 2/1/2000. Thereafter, the
management entered appearance and filed its Written Statement
at Exhibit 13, contesting the claim in its entirety. It was contended
that the concerned workmen were engaged by the departmental
canteen committee on daily wage basis as Wash Boys, and
therefore no right to seek regularization against the establishment
of MTNL could arise. The management further contended that
recruitment to posts under MTNL is governed by prescribed rules
requiring sponsorship through the employment exchange and
compliance with other procedural formalities, which were
admittedly not followed in the present case. It was also asserted
that the concerned workmen were not appointed pursuant to any
formal work order issued by a competent authority of MTNL, and
that their names did not figure either on the muster roll or on the
payroll of the establishment. On these premises, it was contended
that the claim for regularization as well as for extension of benefits
under the 3rd and 4th Pay Commission recommendations was
untenable and liable to be rejected. The management further
denied the assertion that the concerned workmen were working
against regular vacancies or that they acquired the status of
departmental employees with effect from 1 October 1991 pursuant
to any judgment of the Supreme Court. The plea of continuous
service since 1981 and 1986 was also specifically disputed. On
these grounds, the management sought dismissal of the reference
with costs.
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6.In rejoinder at Exhibit 14, the concerned workmen
controverted the contentions of the management and asserted that
they were in fact engaged by MTNL and not by any canteen
committee. It was contended that in view of such engagement, the
law laid down by the Supreme Court with respect to canteen
employees squarely applied. It was further submitted that MTNL
constitutes an “industry” within the meaning of the Industrial
Disputes Act, 1947, and that the canteen employees are industrial
workmen under the said Act. It was clarified that the workmen
were neither employed in a Central Government office canteen nor
were they holders of civil posts, and therefore the Tribunal
possessed the requisite jurisdiction to adjudicate the dispute.
7.The Association further asserted that several similarly
situated workmen had been granted regularization with effect
from 1 October 1991 following the decision of the Supreme Court,
notwithstanding the absence of formal appointment orders or
recruitment through the employment exchange. Such workmen
were also extended the benefits of the 3rd and 4th Pay
Commission recommendations. It was, therefore, contended that
the present workmen were similarly placed and entitled to
identical reliefs, leading to the filing of the present petition.
8.Learned Advocate appearing for the petitioner submits that
the Tribunal has erred both in law and on facts in recording a
finding that there was an admission on the part of the
management witnesses to the effect that salaries of the canteen
employees were paid by MTNL. It is contended that no such
admission is borne out from the evidence on record. On the
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contrary, the testimony of the management witnesses, properly
appreciated, indicates that the salaries of the canteen employees
were not disbursed by MTNL. It is further contended that the
Tribunal committed a serious error in holding that the concerned
workmen were in continuous service without interruption since the
years 1982 and 1986 respectively. It is submitted that although the
dispute was raised on the premise that the workmen were
employed in the departmental canteen at Saawla Chambers,
Mumbai, the workmen themselves admitted in their cross-
examination that they were not working in the said canteen, but
were in fact engaged in another canteen at Cuffe Parade under a
contractual arrangement. In light of such admissions, it is
submitted that the finding recorded by the Tribunal regarding
continuous service is perverse and contrary to the evidence
available on record.
9.It is further submitted that the concerned workmen have
admitted that, as on the date of the Award dated 22 August 2017,
they were not working in any of the departmental canteens of
MTNL. It is contended that despite such clear admissions, the
Tribunal proceeded to grant relief in favour of the workmen, which
renders the Award unsustainable. The petitioner further contends
that the Tribunal erred in holding that since the canteen committee
had engaged the workmen, and as the said committee formed part
of MTNL, the workmen
ipso facto became employees of MTNL.
Such a finding, it is submitted, is contrary to settled legal
principles. It is contended that the canteen committee had neither
authority nor jurisdiction to create posts in MTNL or to effect
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recruitment on its behalf. The mere fact that the canteen was
permitted to function within the premises of MTNL as a welfare
measure, and that the committee engaged certain persons for its
operation, does not lead to the conclusion that such persons
thereby acquired the status of employees of MTNL. On the
aforesaid grounds, it is submitted that the impugned Award suffers
from errors apparent on the face of the record and warrants
interference in exercise of supervisory jurisdiction, and is therefore
liable to be set aside.
10.Per contra, learned Advocate appearing for the respondents
submits that the evidence on record clearly establishes that the
canteen in question is a departmental canteen of MTNL. It is
pointed out that the witnesses examined on behalf of MTNL have
admitted that the canteen committee is constituted by officers of
the Telephone Exchange and that funds for running the canteen
are provided by the Welfare Department of MTNL. It is further
submitted that the management witnesses have admitted that the
canteen is run by the Department and that the salaries of the
employees are paid by the Department. On the basis of these
admissions, it is contended that the concerned canteen employees
must be held to have been appointed by MTNL and are therefore
employees of MTNL within the meaning of the Industrial Disputes
Act, 1947. It is further submitted that in an earlier dispute of a
similar nature raised by the Bombay Telephone Canteen
Employees Association, the Tribunal had passed an Award which
was subsequently upheld by the High Court as well as the Supreme
Court. It is, therefore, contended that the Tribunal had the
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requisite jurisdiction to entertain and adjudicate the present
reference.
11.The respondents further submit that the Special Divisional
Engineer (C.T.), MTNL, had furnished information to the Assistant
General Manager regarding the concerned workmen, which
demonstrates that they were employed in the canteen since the
years 1981 and 1986 respectively. It is submitted that the
attendance records maintained by MTNL on a month to month and
year to year basis clearly establish that the workmen were in
continuous employment during the relevant period. It is further
contended that similarly situated canteen employees have already
been granted regularization in pursuance of the judgment of the
Supreme Court. It is also submitted that the information supplied
by the Special Divisional Engineer (Administration), Mumbai to
the Assistant General Manager (Administration), MTNL indicates
that Shri Narayan M. Sanil was not regularized earlier on the
ground that he was underage at the relevant time. It is contended
that such a ground cannot operate as a valid impediment to deny
him the benefit of regularization.
12.It is lastly submitted that the concerned workmen have been
continuously employed in the departmental canteen of MTNL and
there is no material on record to indicate that they were engaged
by any independent or third-party agency. Reliance is placed on the
judgment of the Supreme Court in
Mahanagar Telephone Nigam
Ltd. vs. Bombay Telephone Canteen Employees Association
to
contend that MTNL is under a legal obligation to regularize the
services of such canteen employees. It is further submitted that
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other similarly placed employees have already been granted such
benefit. On these premises, it is contended that the claim for
regularization along with consequential benefits is legal, justified,
and calls for no interference.
REASONS AND ANALYSIS:
13.I have considered the rival submissions with care and I have
gone through the material placed before the Tribunal. The
petitioner says that the Tribunal has drawn wrong inferences from
the evidence and has treated the workmen as employees of MTNL
without proper basis. The respondents say that the record itself
shows that these were not outside labour, but canteen workmen of
MTNL, and that their long service could not have been ignored.
The question, therefore, is whether the Award is supported by the
evidence and the law, or whether it suffers from such grave error
that this Court should interfere under Article 227.
14.The first submission on behalf of the petitioner is that the
Tribunal wrongly recorded an admission that the salaries of the
canteen employees were paid by MTNL. This submission cannot be
accepted in a simple and broad manner, because the evidence has
to be read as a whole and not by taking one line in isolation. It is
true that the management disputes such payment and says that no
witness admitted direct payment by MTNL in the sense of regular
salary to all the workmen. But the respondents have pointed to the
evidence of management witnesses showing that the canteen was
treated as a departmental canteen, that the committee was formed
by officers of the Telephone Exchange, and that the Welfare
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Department provided funds for its running. If the canteen was run
with departmental funds and under departmental control, the
Tribunal was not wrong in treating that evidence as relevant for
deciding the real employer. The form of the answer in cross-
examination cannot be taken away from the rest of the record.
15.The next contention of the petitioner is that the Tribunal
erred in holding that the concerned workmen were in continuous
service since 1982 and 1986 respectively. On this aspect also, the
Court must see whether the finding is perverse, or whether it is a
possible finding on the evidence. The petitioner relies upon the
cross-examination of the workmen, where it is said that they
admitted that they were not working in the Saawla Chambers
canteen, but were working in another canteen at Cuffe Parade
under a contractual arrangement. Even if this answer is accepted,
it does not by itself answer the whole issue. The real question is
not only the place of work, but also the nature of the engagement
and whether the workmen were in the canteen system of MTNL
throughout. The respondents have produced the material said to
have been furnished by MTNL officers themselves, including the
attendance records maintained month-wise and year-wise, which
indicate service from the years 1981 and 1986. If these records are
part of the management record, they cannot be brushed aside
lightly. A finding of continuous service based on such material
cannot be called wholly unreasonable.
16.The petitioner has then argued that the workmen admitted
that they were not working in any departmental canteen of MTNL
when the Award was passed on 22 August 2017, and therefore no
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relief could have been granted to them. This submission also needs
a careful answer. A workman’s present place of work, or even the
fact that he was not in service on the date of Award, does not
automatically destroy a claim which had already matured on the
basis of earlier continuous service. The Tribunal was concerned
with the legality of the denial of regularization from an earlier
point of time. If the workmen had already completed the service
required under the settled practice and the relevant law, later
discontinuance or a change in the arrangement would not
necessarily wipe out the claim. The relevant inquiry was whether
the claim for regularization had substance on the facts proved
before the Tribunal. That inquiry was answered in favour of the
workmen.
17.Much was also said by the petitioner on the legal position
that the canteen committee had no authority to create posts in
MTNL or to appoint employees on its behalf. That proposition,
stated generally, is correct. A committee which has no power to
create sanctioned posts cannot, by itself, create a statutory right.
The Tribunal did not appear to proceed only on the bare fact that
the committee engaged the workmen. It proceeded on the larger
factual picture, namely that the canteen was a departmental
canteen, that it was run with departmental involvement, that
funds were provided by the welfare side of MTNL, and that the
management records themselves showed long service of the
workmen. In such a situation, the Tribunal was entitled to look
beyond the label of the committee and see the real nature of
employment. Mere absence of a formal appointment letter does
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not always conclude the issue where the entire service
arrangement is otherwise shown by record and conduct. The law
does not permit the employer to take benefit from an arrangement
which it itself controlled, and then deny responsibility only
because the paper of appointment was not issued in the usual
form.
18.The respondents, on the other hand, rely strongly on the
admissions of the management witnesses. They say that the
canteen was admitted to be a departmental canteen, that the
committee was appointed by officers of the Telephone Exchange,
and that the Welfare Department supplied the funds. They further
say that the management witnesses admitted that the canteen was
run by the department and the salaries of the employees were paid
by the department. If these admissions read together, they do
support the conclusion that the canteen was not an outside
independent canteen, but one functioning under the
administrative umbrella of MTNL. The Tribunal was, therefore,
justified in treating the workmen as linked to MTNL and not as
strangers to it.
19.The respondents also rely upon the earlier award in a similar
dispute raised by the Bombay Telephone Canteen Employees
Association, which was confirmed by the High Court and the
Supreme Court. Where a similar class of employees has already
been recognized in earlier litigation, the Tribunal is not acting in
vacuum if it follows the same legal approach, so long as the facts
are comparable. The respondents say that similarly situated
canteen employees were already regularized pursuant to the
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judgment of the Supreme Court. That also strengthens the case of
consistency and equal treatment. The law does not favour a result
where some workers in the same establishment are given the
benefit of regularization and others are denied the same benefit
without a good reason.
20.The submission regarding Shri Narayan M. Sanil being
earlier not regularized on the ground of being underage is also not
of much help to the petitioner. If the only obstacle earlier was age,
and that obstacle no longer existed or was not a legal bar to the
claim when the question of regularization was examined, the
Tribunal could not deny relief merely on that historical ground.
The real issue was whether he had worked for the required period
and whether his service was part of the canteen employment of
MTNL. The answer given by the Tribunal was in the affirmative,
and I do not find it to be without support.
21.The scope of interference under Article 227 is also limited.
This Court does not sit as a regular appellate court to re-weigh
every piece of evidence and substitute its own view just because
another view is possible. Interference is justified only where the
finding is perverse, wholly unsupported by evidence, or based on
complete misreading of the record. Here, the Tribunal has
considered the oral evidence, the admissions, the attendance
records, the nature of the canteen, and the earlier legal position.
Even if the petitioner has been able to raise some arguable points,
that is not enough. The Award cannot be said to be so irrational or
so contrary to the record that it must be set aside.
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22.For these reasons, I am of the clear view that the workmen
had placed material before the Tribunal to show long and
continuous service in the departmental canteen system of MTNL,
and the management failed to dislodge that case in a convincing
manner. The Tribunal’s conclusion that the demand for
regularization was justified is supported by the evidence on record
and by the legal position flowing from the earlier decision of the
Supreme Court relied upon by the respondents. The Petition,
therefore, fails. The Award dated 22 August 2017 does not call for
interference.
23.In the result, the Petition is partly allowed.
(i) The impugned Award dated 22 August 2017 passed by
the Central Government Industrial Tribunal No. 2, Mumbai
in Reference No. CGIT-2/154 of 1998 is modified to the
limited extent that the direction of regularization of services
of Shri Narayan M. Sanil shall take effect from 1 April 1986
instead of 1 May 1982, having regard to the fact that the
petitioner–establishment came into existence on 1 April
1982;
(ii) In all other respects, including the direction regarding
regularization of Shri Harish N. Poojary with effect from 1
May 1986 and the grant of consequential benefits, the Award
is upheld;
(iii) The petitioner shall comply with the modified Award
within a period of twelve weeks from the date of this order;
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(iv) Rule is made partly absolute in the aforesaid terms. No
order as to costs.
(AMIT BORKAR, J.)
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