- (1.) THIS judgment shall dispose of all the above writ petitions as the point involved is common in all these writ petitions, namely, whether the employees of the canteen could be considered the employees of H. M. T. Ltd. (hereinafter called the company) or/are the employees of H. M. T. Employees Co-operative Canteen, Ltd. (hereinafter called cooperative canteen ). Writ petition No. 1341 of 1986 has been filed by H. M. T. Employees Union against the award of the Labour Court, dated March 27, 1986, in which it was decided that the H. M. T. Employees Co-operative Canteen Ltd. , is the employer of V. N. Bose and not the company. A prayer is made that the said employee be declared the employee of the company irrespective of the fact that he was working in the cooperative canteen. Writ Petition No. 1477 of 1987 has been filed by the H. M. T. Employees Union against the award of the Industrial Tribunal, dated November 5, 1986, in which it was declared that the employees of the canteen are regular employees of the management, i. e. the company and they are entitled to perks including the leave as the regular employees in the establishment of the management. The employees in canteen at serial Nos. 1 to 20 and 26 to 36 were directed to be placed in WG-1 Grade and employees at serial Nos. 21 to 25 were directed to be placed in WG-II Grade. The award was made applicable from the date of the award and the prayer in the writ petition was made that the award be made operative from January 1, 1983 and Viswanath workman at serial No. 25 be declared entitled to be fixed in WG-III Grade instead of WG-II Grade. Writ Petition No. 4704 of 1991, has been preferred by H. M. T. , Ltd. , against the award, dated October 1, 1990, of the Industrial Tribunal, Jaipur in which it was held that the employees Kishan Singh, Tej Singh, Kan Singh, Om Prakash, Om Prakash Rao and Hari Singh are the employees of the company and are entitled to WG-I Grade. Writ Petition No. 671 of 1987 has been filed by H. M. T. , Ltd. , against the award, dated November 5, 1986, which have also been challenged by the union as mentioned above and the employees of co-operative canteen were considered as employees of the company. The facts of the case are that H. M. T. Ltd. , is a company incorporated under the Companies Act, 1956, in which 100 per cent shares are of Government of India. A co-operative society in the name of H. M. T. Employees Co-operative Canteen Ltd. was registered under the provisions of Rajasthan Co-operative Societies Act, 1965, with effect from November 17, 1979. The object of the canteen was to promote the economic interest of the members, to encourage self help and mutual help amongst its members, to provide better canteen facilities for better work and better living of the H. M. T. employees at Ajmer, the purchase and sale of the articles of requirement of good quality for H. M. T. employees at reasonable price, to carry on any other thing which is incidental and conducive to the contents of the objects of the canteen and to provide a fair rate of return on share-holders' investment. The membership of the co-operative canteen was restricted to the employees of the company. H. M. T. Employees Union was having the membership of about 300 workers and is said to be unrecognised union. H. M. T. Shramik Sangh was having about 800 workers and is said to be a recognised union. An application was moved by H. M. T. Employees Union to the Deputy Labour Commissioner, Labour Department that the employees of the society working in the canteen should be treated as employees of the company. There was a failure report of the Conciliation Officer which was sent to the Government on January 231 1984. The dispute was preferred under Section 10 (1) read with Section 12 (5) of the Industrial Disputes Act to the Industrial Tribunal. The Statements of claim were filed by the Union on October 22, 1984 and reply by the company on February 15, 1985. An objection was taken that H. M. T. Co-operative Canteen Ltd. is a necessary party and on that basis the application, dated May 15, 1986, was moved by the union. The said application was ultimately withdrawn on July 29, 1986 with the change of Presiding Officer.
(2.) THE grievance of the company in this writ petition is that the union is not a recognised union and does not represent the majority of the employees. After coming into existence of the co-operative society, none of the employees have made representation that they should be treated as employees of the company. The company has given the contract to run the canteen to the co-operative society as the Contract Labour (Regulation and Abolition) Act does not prohibit execution of the work on contract basis. The said co-operative society has obtained the licence under the Contact Labour Act. The dispute, if any, should have been preferred under Section 75 of the Rajasthan Co-operative Societies Act. The co-operative society was a necessary party. The canteen is not run by the company nor the co-operative society is the creature of the management of the company. The co-operative society came into existence at the instance of the employees of the company. Merely because certain amenities including financial assistance for subsidised rates have been given by the company, it cannot be said that there was any financial or managerial control or supervision over the employees of the society by the company. There were certain officers who were acting in dual capacity and the management committee of the co-operative society is constituted by election. A copy of registration certificate of the society Exhibit M2, dated November 17, 1979, have been placed on record. The copy of Exhibit M1, dated November 21, 1979, written by the company to the cooperative canteen have also been placed on record in which it is mentioned that the company will provide canteen as per provisions of the Factories Act, 1948, and the society will supply lunch, snacks on rates fixed by the company. The amount incurred by the society for the service of canteen will be paid on actual basis in the form of subsidy. It was also mentioned that the society would pay its employees atleast minimum wages as per the Minimum Wages Act as amended from time to time and will observe strictly that law of land under the terms and conditions of the services of its employees. If the services of the canteen were found unsatisfactory, the contract could be terminated by the management of the company. In the statement claim it was mentioned that there are about 1700 workers and the H. M. T. Employees Co-operative Canteen, Ltd. , is only a pseudo name. All the members and officers of the society are employees of the company. The President of the society N. V. Tandon and Secretary V. Balani are the Chief Personnel Manager and Deputy Personnel Manager and there is complete administrative control of the officers. In the above four writ petitions the awards, dated March 27, 1986, November 5, 1986 and October 1, 1990, are in dispute. According to the management the operations of the canteen are being carried on by a co-operative society in the name of H. M. T. Employees Co-operative Canteen Ltd. , and the employees of which the dispute has been raised were employed by the said canteen. The letter of appointment, dated November 21, 1979, by H. M. T. Ltd. , to award the contract to run the canteen to the said Co-operative Canteen Ltd. , have been placed on record and, therefore, it is submitted that the company cannot be made responsible with regard to the termination or other benefits claimed by the employees of the said canteen. While according to the H. M. T. Employees Union the company is under statutory obligation to maintain the canteen and it is alleged that the entire management is of the company itself. Only the veil is to be lifted to bring the correct position on record. It is submitted that the termination of the employees by the canteen is not in accordance with law and that the employees are entitled for the various benefits for which the demand was made to which the other employees of the company are entitled to. In order to appreciate the contention of both the sides the findings which have been recorded in the award have been taken into consideration. It may be noted that the award, dated March 27, 1986, is in favour of the management while the award, dated November 5, 1986 and October 1, 1990, are in favour of the employees union. The findings which has been recorded in the award, dated March 27, 1986, are as under: The dispute in this case was with regard to the termination of services of V. N. Bose. The statement of B. Balani and V. P. Gupta were recorded in which they have stated that the management of the canteen is run by the Employees Cooperative Canteen, Ltd. , and the company H. M. T. Ltd. , is not responsible for it. In the statement of Bhanwarlal it was stated that the management is run by the co-operative society canteen but, the officers of the company are the executives of the canteen also. The employee was appointed by Sri Tandon who is the Chief Personnel Manager of the company and the President of the canteen. In the statement Sri P. C. Joshi has stated that the control on the staff was of Sri Bose. On behalf of the company it was stated that the employees of the canteen were appointed by the contractor, i. e. , the Cooperative Canteen Ltd.
(3.) ON the basis of the evidence which was produced the Judge came to the conclusion that it is not true that the employee was given the appointment by the company or that the company has control over the management of the canteen. The canteen co-operative society is responsible for the management of the canteen and the company cannot be made responsible for it. The employees Co-operative Canteen Ltd. , is the employer. In the award, dated November 5, 1986, the dispute was with regard to the demand of 36 employees of the canteen. The Judge, Industrial Tribunal found that the canteen is run within the premises of H. M. T. Ltd. , Ajmer, Sri V. N. Tandon and Sri B. Balani are the President and Secretary of the co-operative canteen respectively and also the Chief Personnel Manager and Deputy Personnel Manager of the company. The entire furniture, utensils and other articles which are used in the canteen are provided by the management. The eatables provided are subsidised by the management and the price of the eatables are fixed by management. The wages of the employees working in the canteen are paid by the management by giving the subsidy. It was found that the Contract Labour Act has been enacted to regulate the employment of contract labour in certain establishments and to provide for its abolition in certain circumstances. The case of the employees was that the canteen is run by the management through the co-operative canteen in, compliance with the statutory provisions contained in Section 46 of the Factories Act, 1948, and the co-operative canteen has no independent existence of its own but, is a creature of management which is providing building, utensils, furniture and subsidy through the canteen and exercising the administrative and economic control over the canteen. The company contended that the co-operative canteen has an independent existence and is a registered body. It is run and managed by the managing committee which is elected by the workers. The employees are employed by the canteen and there is no relationship of master and servant between the employees of the canteen and the company. On behalf of the workers a document Exhibit W1, dated March 14, 1982 was produced having the signature of Deputy General Manager (Personnel) Sri K. A. Gandhi with regard to the increase in wages of the employees of the canteen. It was contended on behalf of the company that the sanction was given by Sri K. A. Gandhi as the President of the co-operative canteen for which the minutes of the meeting recorded in Exhibit M-7, dated July 14, 1982, were submitted. The Judge Industrial Tribunal was of the view that the increase in the wages of the office-bearers proves that they are the employees of the company and the company has to bear the expenses resulting from the revision to effect the increase of wages of employees of the canteen. Exhibit W5 is in respect of regularisation of services of casual workers employed in the co-operative canteen was also taken note. Exhibit W6 in connection with provident fund deduction of employees working in the canteen and visit of K. G. Sharma who was Personnel Officer in the management was also taken into consideration. Exhibit W7 was in respect of the items supplied by the management to the company. Exhibit W8 as a statement of extra-duty of Kalicharan-canteen-boy in the Personnel Department of management in the month of November and December, 1982 was also produced. Exhibit W9 was a document for fixation of lunch-time of the contract labour. Exhibits W10 and W12 was in respect of the furniture requirement of the canteen. Exhibit W11, dated January 27, 1981, was for the transfer of beehive hard coke from foundry to canteen. Exhibit W13 prescribed the system by which the sale of articles in the canteen is made. Exhibit W14 is the indent of purchase of articles required for use in canteen. Exhibit W15 is for repair of weighing scale of the canteen for which the order was given by the Personnel Officer, Sri P. Sharma. Exhibit W16 is the letter by which the Chief Personnel Manager, Sri V. N. Tandon has given a separate code number RJ 3291 to govern the canteen under the Employees' Provident Fund Act as a separate establishment. Exhibit W17 is the certificate of employment issued by the officer of management to Santosh Kumar in canteen. Exhibits W18 and 19 are the notes whereby the canteen-boy Kalicharan was asked to give his duties in the Welfare Department of H. M. T. Ltd. , in the month of March 1983. Exhibits W20 and W21 show that one Lal Singh has deposited the canteen money with the H. M. T. Ltd. , and obtained the receipt. Exhibit W23 is copy of written statement in which Sri K. G. Sharma (since removed) was shown as employee of the company. Exhibit W24 has declared the canteen as department of the company. P. W. 1 Bhanwarlal deposed in the affidavit that the canteen is run by the management through co-operative canteen. The official who run cooperative canteen is the employee of the management. The articles like furniture, utensils and coal are provided by the management to the canteen and building of canteen is situated in the premises of the management. The management takes the decision with regard to the increase of wages of the employees working in the canteen. Menu is prepared by the company. Sri Phool Chand one of the workers in his affidavit stated that the canteen is run in the premises of the company and the articles used in the canteen are supplied by the management. Price of eatables are fixed by the management and that he was employed by the manager of the co-operative canteen. Another employee Babu Khan has deposed that he was employed as attendant in the canteen and the utensils, furniture, electric power and water are made available from the management. He was employed by the contractor before 1975 and many a times the vehicles of the management used to bring the articles from the market to canteen. Sri O. P. Sharma, Treasurer of the co-operative canteen deposed that the official control of the canteen lies with the co-operative canteen and the management has nothing to do with its day to day functioning. The fact of giving the subsidy was admitted and the canteen is being run in the building of the company was also admitted. The furniture is stated to be supplied by the co-operative canteen and not by the management. Sri Syed Ahmed, Manager of the canteen, deposed that the canteen is controlled by the co-operative canteen and is run in the building which is not within the premises of the management. The officials of the co-operative canteen were admitted to be employees of the management. Sri Pramod Sharma, Ex. Secretary, deposed that the canteen is run by the co-operative canteen which exercises the economic and administrative control. Sri C. L Lalwani, Deputy Personnel Manager stated that the canteen is run pursuant to the statutory obligation. The management does not exercise control over the canteen. Certificate of registration and bye-laws governing the functioning of the co-operative canteen were also submitted in which under Article 5 it was provided that the membership of the co-operative canteen shall be open to the employees of the management and under Article 23 the supreme authority was to vest in the general meeting of the members of the co-operative canteen. Article 33 referred to the election of the various office-bearers of the canteen. Article 42 refers to the authority of the management to the canteen which have appointed the staff of the canteen.;