V.K.Gupta, J. - (1.) This appeal is directed against the judgment dated 24.03.1998 passed by a learned single Judge of this Court in C.O. No. 6266(W) of 1990 with C.O. No. 6274(W) of 1990 whereby the writ application filed by the respondent Nos.1 to 120 has been allowed and the appellant and respondents 121 to 124 have been directed by the learned single Judge to regularise the services of respondents Nos. 2 to 120 who had been claiming to be the workmen entitled to be absorbed in the employment of the appellant.
(2.) The writ applications involving common questions of law and fact were filed in this Court. The writ petitioners in both the writ applications claimed that even though they were working in the Canteen of the appellant, but run and operated by a Canteen Contractor, they were essentially and substantially the employees of the appellant and therefore were entitled to be absorbed in the regular employment of the appellant which in effect and substance meant that the appellant was under an obligation to regularise their services with it. Undoubtedly the Canteen in question is run by the appellant on contract basis after inviting tenders from potential Contractors and after acceptance of the tender of the successful bidder. The claim of the writ petitioners for absorption in the service of the appellant has been summarised, with respect to various grounds forming the basis of such claim by the learned single Judge in the Judgment under appeal to the following effect. "(a)Canteener are run to tender service during the hours of work since the services, by their very nature are expected directly to assist the staff in discharging their duties efficiently; (b)Lack of canteen facilities is ordinarily bound to hamper and interfere with the normal working of staff and affect their efficiency. (c)Canteen services are today regarded as a part and parcel of every establishment to such so that they have been made statutorily mandatory under the Factories Act, 1948 in establishments governed by the said Act where more than 250 workers are employed: (d)Canteen services are no longer looked upon as a more welfare activity but as an essential requirement. (e)both law and facts spell out that there is a relationship of employer-employee between the respondents and the employees, the petitioners. (f)Canteen is subsidised, supervised and managed by the management of Haldia Refinery. (g)the wages and other facilities of the petitioners are being determined through negotiation with the management. (h)the refinery canteen was set up to meet the food requirements of various personnel deployed in the refinery complex. They are served at regular intervals in the form of snacks, lunch, dinner etc. Besides the common serving in centralised dinning hall, the serving is also done at various working points in the refinery to meet the operational requirements and due to continuous nature of operations in the refinery manpower is deployed at various sections on rotational as well as general shifts".
(3.) It is the undisputed case of the parties that after inviting tenders from potential bidders, the appellant allotted the contract of running the Canteen in favour of the successful bidder on various terms and conditions as were forming part of the said Contract Agreement. It is also the undisputed case of the parties that the Canteen in question is a statutory Canteen because of the statutory requirement on the part of the appellant for running, operating and maintaining such a Canteen in terms of section 46 of the Factories Act. It is also the undisputed case of the parties that the Canteen is not only a statutory Canteen but is also a recognised one. The learned single Judge has taken great pains in culling out various terms and conditions in the Contract agreement between the Canteen Contractor and the appellant and has also referred to various statutory provisions, including the Rules framed under the Factories Act to form an opinion and come to the conclusion that the appellant exercises a very high degree of control over the Contractor who has been awarded the contract of running the Canteen. During the course of hearing of this appeal, the learned Advocates of the parties before us also extensively referred to these terms and conditions to point out their respective points of view about the nature of the contract and as to whether the Canteen is run by a Contractor in his capacity and status as a Contractor or the Contractor is nothing but a mere Agent or Servant of the appellant and that the contract is a sham transaction or that it is merely for the sake of record.;