- (1.) TARUN Agarwala, J. By means of this petition, the petitioner has challenged the validity and legality of the award directing reinstatement of the female workers with retrospective effect and with full back wages.
(2.) THE facts leading to the filing of the writ petition is, that the petitioner, North Eastern Railway, affairs and administration is regulated under the Indian Railways Act as well as under the provisions contained in the Indian Railways Establishment Manual and other statutory Rules and Regulations. As per Para 2839 of the Indian Railways Establishment Manual, the petitioner provide benefits to the families of railway employees by way of setting up welfare schemes. Para 2839 of the Manual reads as under : 2839 HANDICRAFT CENTRES : (1) Handicraft centres should be set up for the benefit of the families of the Railwaymen for imparting training to women members of Railwaymen families in handicrafts such as weaving, knitting, spinning tailoring of garments etc. during their spare time with the object of helping them in learning trade to augment the family income. (2) Expenditure of this scheme should be met from the Staff Benefit fund. (3) Accommodation for Handicraft centres should be provided in spare railway buildings free of rent. No new building for this purpose should be constructed without prior approval of the Railway Board. (4) Charges for electricity and water consumed by the Handicrafts centres located in railway building should be borne from the Railway Revenues. Where the Handicraft Centre are housed in Railway Institutes those charges should be borne by the institute. (5) Railway Administrations should patronise and encourage the Handicraft centres by placing orders for the supply and fabrication of articles required by railway. In accordance with the aforesaid provision, the Ministry of Railways, in the year 1959, sanctioned a welfare scheme by setting up a handicraft centre for the benefit of the families of the railway employees for imparting practical training to the women members of the railwaymen in handicrafts such as weaving, knitting, spinning, tailoring of garments, etc. during their spare time with the object of helping them to learn some trade and to augment the family income. In this manner, three handicraft centres were opened in the Gorakhpur Division. In order to run and manage the affairs of the handicraft centre, the entire expenditure such as electricity, water, etc. , is borne by the railways. The handicraft centre has its own Bye- laws. The Bye- laws provides for a membership which has to be filled up by a railway employee for its female family member. A subscription of Re. 1 per month is charged from the member. The present dispute relates to the Handicraft Centre No. 1 at Gorakhpur Division which had about 70 female members. In this handicraft centre, training was imparted to the female members to learn a particular trade like weaving, knitting, spinning, tailoring of garments, making envelopes, files, folders, etc. The raw material is provided by the railways and the members were paid on piece rated basis. It transpires that the notices were issued by the labour department intimating the railways that the handicraft centre was an industry and, therefore, the petitioners were required to comply with the provisions of the Factories Act, 1948. The female workers also started raising a demand for increasing the remuneration which they were getting for the piece rated work and also alleged that they should be paid a regular salary instead of being paid on a piece rated basis. This led to some agitation and staging of dharnas and demonstrations, as a result of which, the railway authorities took a decision for the closure of the handicraft centre. The female members, being aggrieved, raised an industrial dispute and upon the failure of the conciliation proceedings, the matter was referred for adjudication before the Industrial Tribunal. The terms of the reference order was, "whether the employees were justified in terminating the services of 118 female workers w. e. f. 28-5-1984 ? If not, to what relief were the workers entitled to ?"
(3.) BEFORE the Tribunal, the respondents contended that under the garb of a training centre and under the garb of imparting training, the petitioners were in fact taking regular work from them and that there was a master and servant relationship and instead of paying regular wages, the employers had adopted an unfair labour practice by giving them a paltry amount on piece rated basis. The respondents contended that the handicraft centre was nothing else but an industry where an industrial activity was being carried out and, therefore, the provisions of the Industrial Disputes Act was clearly applicable. The respondents were working from two years to twenty seven years without any break in service, and were being paid on piece rated basis. The action of the respondents in closing the establishment without complying with the provision of Section 25-F of the Industrial Disputes Act, was patently erroneous and violative of the provisions of the Act. The respondents alleged that since, they had worked for more than 240 days in a calendar year and since retrenchment compensation was not paid, the removal of their services was wholly illegal and therefore, they were liable to be reinstated in service with full back wages. The petitioners on the other hand, contended that the handicraft centre was opened in terms of para 2839 of the Railway Manual. The handicraft centre was part of the Railways and a welfare scheme was opened by the railways for the benefit of the family members of the railway employees to whom training of a particular trade was given in their spare time to augment the family income. The petitioners contended that the handicraft centre was not an industry and, in any case, the provision of the U. P. Industrial Disputes Act, was not applicable, inasmuch as the respondents were not employees of the railways or of the handicraft centre and that there was no master and servant relationship between the railways or with the handicraft centre with that of the respondents. Consequently, the provisions of the U. P. Industrial Disputes Act, could not be invoked. The petitioners further contended that assuming without admitting that the provisions of the said Act was applicable, the reference, if any, could only be made by the appropriate Government, which in the present case, was the Central Government under Section 10 of the Industrial Disputes Act and that, the State Government was not the appropriate Government to make a reference under Section 4-K of the U. P. Industrial Disputes Act.;