- (1.) This appeal by grant of leave is directed against the judgment dated 31. 03.2000 passed by the Division Bench of the High court of Calcutta at Calcutta in M. A. T. No. 4310 of 1998. By the impugned order the Division Bench has set aside the judgment and order of the Single Judge of the same High Court in C. O. No. 6266 (W) of 1990 with C. O. No. 6274 (W) of 1990. The single Judge had allowed the writ application filed by the appellants and directed the indian Oil Corporation Limited, Haldia Oil refinery (hereinafter referred to as "the respondent") to absorb the appellants in its service and regularise their services. Division bench has set aside the aforesaid direction given by the learned Single Judge and held that the appellants were neither entitled to be absorbed nor regularised in the service of the respondent.
(2.) Short facts of the case are as under:- 2.1 Two sets of writ applications were filed in the High Court of Calcutta involving common question of law and fact, both of them were taken up together by the Single Judge and disposed of by the common judgment. Admittedly, the appellants are working in the statutory canteen run by the respondent through contractor in its factory at haldia, District Midnapore, West Bengal. Respondent was treating the appellants as the employees of the contractor. Aggrieved against this, the appellants filed the writ applications in the High Court contending therein that the factory of the respondent where the workmen are employed is governed by the provisions of Indian Factories act, 1948 (for short "the Factories Act") and the canteen where the said workman are employed is a statutory canteen established by the respondent as required under the provisions of the Act. It is averred in the petition that the canteen is maintained forthe benefit of the workmen employed in the factory and the respondent has direct control over them. Contractor though shown as a contractor has no control over the management, administration and functioning of the canteen. That the canteen is a part of the establishment of the management and the workers in the canteen are the employees of the management. That the work carried on is perennial in nature and the canteen is incidental to and is connected with the establishment of the management. It was contended that the appellants were the regular employees of the respondent. The management had refused to grant the status of regular employees to the appellants and treated them as employees of the canteen contractor contrary to the statutory provisions and judicial pronouncements of this Court. Writ applications were filed seeking issuance of mandamus to the respondent to absorb the appellants in its service and to regularise them as such. 2.2 Respondents in their written statement denied that the appellants were its employees or they were entitled to be regularised as such. None of the appellants was appointed by the respondents. All of them were appointed by the contractor and therefore, they were the employees of the contractor. Under the Factories Act, a factory employing more than 250 workers is required to provide the facility of a canteen. The Factories Act or the Rules framed thereunder do not require that such a canteen should be managed and run by regular employees of the establishment. In law it is open and permissible to the management to entrust the same to a contractor. It was contended that the respondent being a public sector undertaking has devised and put in place rigid employment strategies for its core activities based on employment strengths derived on the basis of production and output norms and requirement studies. All recruitment by and within the corporation is made strictly according to those norms on the basis of staff strength and quotas fixed for direct recruitment on the basis of job qualifications, employment norms, reservation of posts to be filled by internal promotion pursuant to settlements arrived at by the corporation with its recognised unions and such employment can only be made against existing vacancies. It cannot appoint any person in contravention of the recruitment policy which requires the management to follow the system. Therefore, apart from the fact that the appellants were not in regular employment of the respondent, the absorption or regulari- sation of their services would contravene article 16 (4) of the Constitution as well as the reservation policy which is applicable for recruitment in the establishment managed by it. 2.3 The learned Single Judge before whom the writ applications came up for hearing relying upon the two judgments of this Court in M. M. R. Khan and Others v. Union of India and others and Parimal Chandra Raha and Others v. Life Insurance Corporation of India and Others held that under the provisions of the Factories Act, it is the statutory obligation of the employer to provide and maintain a canteen for the use of its employees. The canteen becomes a part of the establishment and, therefore, the workers employed in such canteen are the employees of the management. After referring to the various provisions including the rules framed under the Factories Act the learned single Judge came to the conclusion that the respondent exercises a very high degree of control over the contractor who has been given the contract of running the canteen. The obligation to provide canteen being statutory the facility became a part of service condition of the employees. It was held that the appellants were in fact the employees of the respond- 1 JT 1990 (3) SC 1; 1990 (Supp) SCC 191 2 JT 1995 (3) SC 288; 1995 Supp (2) SCC 611 ent and were being wrongly treated as employees of the contractor. Accordingly, a direction was given to the respondents to absorb the appellants in its service and regularise them with effect from the date of filing of the writ application. 2.4 Aggrieved against the judgment and order of the single Judge, the respondent- management filed intra court appeal which has been accepted. The Division Bench relying upon a later Three-Judge Bench judgment of this Court in Indian Petrochemicals corporation Ltd. and Another v. Shramik Sena and Others reversed the judgment of the single Judge and dismissed the writ applications filed by the appellants. Aggrieved against the aforesaid judgment of the Division Bench, the present appeal has been filed.
(3.) We have carefully considered the submissions made by the learned counsels for the parties. In Indian Petrochemicals corporation Ltd. and Another (supra) this court while disposing of an identical and similar question of law and fact with regard to the status of the employees working in the canteen and the status of the contractor who was running the canteen on the contract basis elaborately dealt with the scope of Section 46 of the Factories Act, 1948, particularly with reference to the definition of 'worker' as occurring in Section 2 (1) of the Factories Act. After elaborate analysis of the earlier two judgments of this court in M. M. R. Khan and Others and parimal Chandra Raha and Others cases (supra) , it was held that what has been held in these cases is that the workmen were the employees of the management for the purposes of Factories Act alone and did not become the employees of the establishment for any other purpose. After referring the arguments advanced it was held:- "If the argument of the workmen in regard to the interpretation of 'raha' case is to be accepted then the same would run counter to the law laid down by a larger Bench of this court in Khan case. On this point similar is the view of another three-Judge Bench of this court in the case of Reserve Bank of India v. Workmen. Therefore, following the judgment of this Court in the cases of Khan and r. B. I. , we hold that the workmen of a statutory canteen would be the workmen of the establishment for the purpose of the Factories Act only and not for all other purposes. "[emphasis supplied] further it was observed:- "It is clear from this definition that a person employed either directly or by or through any contractor in a place where manufacturing process is carried on, is a "workman" for the purpose of this Act. Section 46 of the Act empowers the State Government to make rules requiring any specified factory wherein more than 250 workers are ordinarily employed to provide and maintain a canteen by the occupier for the use of the workers. It is not in dispute, pursuant to this requirement of law, the management has been providing canteen facilities wherein the respondent employees are working. Hence, it is fairly conceded by the learned counsel for the management that the respondent workmen by virtue of the definition of the "workman" under the Act, are the employees of the appellant Management for purposes of the Act. ";