Sawant, J. - (1.) The appellants - 42 workmen -working in the canteens at four different offices of the respondent-Corporation in Calcutta, are involved in the present proceedings. In 1985, they had approached this Court for certain reliefs by a writ petition under Article 32 of the Constitution. By its order of 19th July , 1986, this Court had directed them to aproach the High Court. Hence they had withdrawn the writ petition with liberty to move the High Court under Article 226 of the Constitution, which they did and the present appeal arises out of the said proceedings. Since on behalf of the respondents an objection is raised that the appellants have been claiming in these proceedings relief which they had never prayed for in the writ petition before the High Court, we may at the outset summarise the contents of the writ petition filed by them in the High Court.
(2.) In Para 2 of the writ petition, the appellants have averred that they are canteen employees of the Corporation and working in the canteens managed by the Corporation. In para 3, they have stated that they are employed in the canteens of the Corporation and some of them for decades, since the inception of the Corporation and others for a minimum of seven years, and are holding the designations variously of Canteen General Manager, Canteen Manager-cum-Salesman, Kitchen Clerk, Canteen Clerk Halwai, Assistant Halwai, Cook, Bearer, Wash-boy and Sweeper etc. In para 4 they have specified the four departmental canteens of the Corporation where they have been working. In paragraph 5, they have averred there that they are paid at the rate much below the rate at which canteen employees working under different Government departmental canteens including those run by statutory Corporations and Railways are paid. They have also stated there that the employees of the canteens in different Government offices and Railways throughout the Country are enjoying at least the pay-scales which are enjoyed by the peons of the respective offices. In paragraph 6, they have given the emoluments which the Class - IV employees of the Corporation get which are between Rs. 700/- and 800/- per month against the wages they get as canteen employees ranging from Rs. 100/- to Rs. 200/- per month. In Paras 7 and 16 of the writ petition, to quote them verbatim, it is then averred as follows: "Your petitioners state that the employees and the staffs of respondent No. 1 at all its establishments are provided with facilities of canteen by the respondents for more than few decades and as such providing of canteen facilities forms a condition of service of the employees and staffs of the respondent No. 1 Your petitioners state that by usage and customary benefits, canteen facilities have become the condition of service of the employees of the respondent No. 1 and as such running of the Canteen is incidental to the running business and/or industry of the Life Insurance Corporation of India (Respondent No. 1) ********** Your petitioners state that they are engaged in the work of the canteen which is incidentally connected with the main industry of the respondent No. 1 and as such they are workmen working under the respondent No.1." It is against the background of the said averments in the main body of the writ petition that in paragraph 18 thereof they have averred that the respondent-Corporation being an instrumentality of the State and being the State within the meaning of Article 12 of the Constitution, cannot deny them equal pay scales with other canteen employees of the Government department/Railways and other statutory Corporations or take a stand or policy different from that followed by the Government departments, Railways and other instrumentalities of the State. With regard to pay-scales of the canteen employees, they have stated there that till date the respondent-Corporation has not framed any pay-scale for the canteen employees and as such have acted in discriminatory manner violating Article 14 of the Constitution. Therefore, in ground No. 2 of the petition they have stated that the canteen workers of the respondent-Corporation being engaged in operation incidentally connected with the industry carried on by the respondents, the respondents cannot deny them the minimum wages given to their employees. In ground No. 3, it is alleged that the canteen facility being condition of service of the staff and employees of the respondent-Corporation as per usage and custom, the appellants, being canteen employees and engaged in operation incidentally connected with the industry carried on by the respondent, "automatically become the direct employees under the respondents and as such they cannot be discriminated against and denied the minimum wages that is prevalent in the Life Insurance Corporation. In ground No. 4, they have stated that the appellants are working under the respondents through the agencies, and being engaged in work incidentally connected with the industry carried on by the Corporation, they are entitled to get the pay that is admissible to regular employees of the Corporation. It is with these averments in the main body of the petition and the grounds that the appellants have in prayer (b) of the petition, claimed the relief of the issuance of the writ of mandamus commanding the respondent-Corporation to comply with the policy of "equal pay for equal work" and pay them the minimum salary that is enjoyed by the staff of the Corporation and also to follow the policy that is prevalent for canteen workers in other Government departments, Railways and statutory Corporations. It is thus clear from the writ petition filed by the appellants before the High Court that they have prayed for the relief of minimum wages paid to the employees of the respondent- Corporation on the ground that they are the regular employees of the Corporation. In other words, it is implicit in the said relief claimed by them that they are to be deemed to be the regular employees of the Corporation and paid the minimum salary that is paid to its other regular employees.
(3.) The case of the respondent-Corporation before the learned single Judge of the High Court as made out in their counter to the writ petition was that the canteens did not belong to it nor were they run by it. The Corporation only gave its employees the facilities to run the canteens. The canteens were run during different periods either by the canteen-committees of the staff or their co-operative society through the contractors, and the appellants were engaged by the contractors or the co-operative society. It has no connection much less contract of employment with the appellants. Nor does it have any control over their working, conditions of service or the termination of their services . They are, therefore, not the employees of the Corporation and cannot be deemed to be so. Hence they are not entitled to the relief claimed by them. The learned single Judge by his decision of 27th September, 1989 allowed the writ petition and directed the respondent-Corporation to implement the policy of equal pay for equal work and pay the appellants minimum salary as is enjoyed by the regular staff of the Corporation or such pay as is enjoyed by regular canteen workers in the other Government establishments of public undertakings. The learned Judge also directed that the appellants shall be treated as direct workers under the Corporation and shall be given all service benefits accordingly.;