Shampa Sarkar, J.
1. The writ petition has been filed by Hindustan Petroleum Corporation Limited (in short HPCL), a Government company challenging an award dated March 9,2007 passed by the learned Central Government Industrial Tribunal at Kolkata in Reference No.22 of 1998. By order No.L30012/67/97 - IR (Coal - I) dated June 30,1998 the Central Government in exercise of its powers under Section 10 (1) (d) and (2A) of the Industrial Disputes Act,1947 (hereinafter referred to as the said Act) referred the following dispute to the learned Tribunal for adjudication:
Whether the action of the management of M/s. H.P.C.L., Paharpur for regularizing the services of canteen employees at Budge Budge and not regularizing the services of the workmen working in the canteen under M/s. Ten Friends Caterers at Paharpur LPG is justified? If not, what relief the workmen are entitled?
2. The reference was at the instance of the Bengal Petrol & Oil Workers Union (hereinafter referred to as the Union), that is, the respondent No.3. The case of the respondent No.3 in their written statement was that, HPCL was running a plant at Paharpur LPG and had employed different categories of workmen/employees. A canteen was also run in the Paharpur plant allegedly by a fake contractor and nine (9) persons who were actually employees of HPCL, were shown to be partners of a fictitious contractor known by the name of M/s. Ten Friends Caterers. A list of the concerned workmen was annexed to the written statement. Their names are as follows:-
1. Sri Ashis Ganguly
2. Prafulla Misra
3. Sri Prabhakar Hazra
4. Sri Panchu Mondal
5. Sri Biswanath Maity
6. Sri Rajen Bera
7. Sri Dipak Khara
8. Sri Bablu Bag
9. Sri Subhas Maity
3. It was the contention of the respondent No.3 that the canteen was situated within the premises of the Paharpur LPG plant. The utensils, fuel, water, furniture, electricity connection, cutlery, crockeries required for the purpose of preparation and service of food to the workmen/employees as also the management staffs were provided by the HPCL. It was further contended that the management of the HPCL supervised and controlled the work of those nine (9) persons. HPCL also regularly deposited provident fund and ESI contribution on their behalf. HPCL, by not recognising those nine (9) as its workmen/employees had adopted unfair labour practice and further that HPCL by not absorbing them as regular employees unlike the employees in the HPCL canteen at Budge Budge, had practised discrimination and the same was violative of Articles 14,16 and 38 (2) of the Constitution of India. The Union had raised a dispute with the management. The conciliation proceedings failed and the competent authority of the Government of India., Ministry of Labour referred the above dispute.
4. In reply to the written statement filed by the Union, the management of HPCL filed their written version. It was contended that the reference was bad in law as it suffered from serious defects. The nine (9) persons were all partners of the M/s. Ten Friends Caterers (hereinafter referred to as the caterers). The caterer had a separate establishment and they shared the profit and loss of the partnership business. The said caterer entered into an agreement with HPCL for supplying food, meals, tea, coffee and snacks to the employees of HPCL at the Paharpur Plant. That those nine (9) persons were not workmen within the meaning of the said Act. The canteen at the Paharpur Plant unlike the canteen at Budge Budge was not a statutory canteen and the work of supply of food to the workers and the management at the Paharpur canteen was not perennial in nature. It was further stated that the caterer had its own code number allotted by the provident fund authorities and the caterer deposited the provident fund and ESI contribution on behalf of those nine persons. The management denied the allegation that the agreement with the caterer was a fictitious contract.
5. On behalf of the workmen two witnesses had been examined, W.W.1, Sujit Kr. Ghosh, a technical assistant of the HPCL, who worked in the office of the General Manager and W.W.2, Ashish Ganguly one of the concerned persons who was working in the canteen at Paharpur for a long time. Several documents had been exhibited on behalf of the workmen namely, Exhibit W-1 to Exhibit W-14. On behalf of the management only one witness was examined namely M.W.1, Debasish Bhattacharya, who was an executive in the said company. Several documents were exhibited on behalf of the management namely, Exhibit1 to Exhibit79.
6. On appreciation of the pleadings, depositions as also the documentary evidence on record, the learned Tribunal came to a finding that the canteen workers namely, the nine (9) persons mentioned in the written statement filed by the respondent No.3, were in fact, employees of the corporation. The Tribunal directed HPCL to pay the minimum salary paid to Class-IV employees of the HPCL, pending framing of service rules akin to rules applicable to similarly situated workmen in the other canteens of HPCL. The Tribunal held that the said nine (9) persons should be treated as regular employees of HPCL from the date of reference that is, June 30,1998. The Tribunal further directed that the arrears of salary should be paid after adjustment of the salary and monetary benefits already received by these persons. The award was however made subject to the condition that those workmen would fulfil the eligibility of minimum and maximum age limit and were also medically fit as per the regulations of the HPCL on the date of reference.
7. Mr. Arijit Choudhury, learned Senior Advocate appearing on behalf of the petitioner, submitted that the schedule of reference was incorrect and liable to be quashed. He urged that in the facts of the case, there could not have been a dispute under the said Act, as the persons were partners of the said caterer which was running the canteen on the basis of an agreement. According to Mr. Choudhury, the schedule of reference pre-supposed an employer employee relationship between these nine (9) persons and HPCL. The scope of reference precluded HPCL from raising their objection as to the jurisdiction of the learned Tribunal to entertain the dispute. Mr. Choudhury further contended that after the decision of the Hon ble Apex Court in Secretary, State of Karnataka and Others vs. Umadevi (3) and others, (2006) 4 SCC 1, there was no question of granting regularization to these employees. Mr. Choudhury referred to the deposition of Debasish Bhattacharya, M.W.1 who deposed that the persons seeking absorption/regularization in HPCL were owners of M/S Ten Friends. He further referred to documents marked as Exhibit M4, M6, M12 which were letters signed by those nine (9) persons, as members of the said caterer authorising one Ashoke Kar and also one Prafulla Misra respectively, at different times, to open and operate bank accounts and sign all documents on behalf of the caterer. Referring to the cross-examination of Ashis Kr. Ganguly W.W.2, Mr. Choudhury submitted that the said witness had stated that he could not produce any appointment letter issued by HPCL to him. Mr. Choudhury relied on the cross-examination of W.W.1 and contended that, it was admitted that Paharpur LPG Plant employed 108 persons whereas,250 persons were working at the Budge Budge Plant of the Corporation and that the witness had also stated that originally 10 persons were the proprietors of M/S. Ten Friends and one of them had left and nine (9) persons used to run the business and share the service charges paid by HPCL.
8. Mr. Choudhury further pointed out to several portions in the agreement in support of his contention that the caterer supervised the canteen and maintained its own attendance register. Mr. Chowdhury referred to the award in detail, in order to show that the learned Tribunal proceeded on the basis that the nine (9) persons working in the canteen were workmen. According to him, a preliminary issue as to whether these persons were partners of the said caterer or actually workmen ought to have been decided first but, the learned Tribunal did not do so. The award was assailed by Mr. Choudhury also on the ground that the entire judgment of the Hon ble Apex Court in the case of Parimal Chandra Raha & Ors, vs. Life Insurance Corporation of India & Ors., (1995) 2 LLJ 339, was reproduced in the award although, the said judgment did not apply in the facts of this case. Mr. Choudhury also contended that the management s evidence were not considered at all by the learned Tribunal specially, the fact that the attendance register was maintained by the said caterer and the caterer had its own provident fund code, which was used to deposit the provident fund contribution of those nine person. According to Mr. Chowdhury, the Tribunal failed to consider material evidence and came to an incorrect finding about the existence of a contractor although the case of the management was that those nine persons were themselves the caterer and they had entered into a contract with HPCL. There was no separate contractor who had employed those persons.
9. Mr. Choudhury relied on the decisions of D.P. Maheshwari vs. Delhi Administration and Ors., (1983) 4 SCC 293, The State of Madras vs. C.P. Sarathy and Anr., (1953) AIR SC 53, The Delhi Cloth and General Mills Co. Ltd. vs. The Workmen and ors., (1967) AIR SC 469, Tata Iron and Steel Company Limited vs. State of Jharkhand and Ors., (2014) 1 SCC 536, Secretary, State of Karnataka and Others vs. Umadevi (3) and others, (2006) 4 SCC 1, State of Karnataka and Ors. Vs. KGSD Canteen Employees Welfare Association and Ors., (2006) AIR SC 845, The Management of Express Newspapers Ltd. vs. Workers and Staff Employed under it and Ors., (1963) AIR SC 569 in support of his above contentions.
10. Mr. Madhusudan Dutta, learned Advocate appearing on behalf of the respondent Nos.3 and 4 submitted that, if HPCL was aggrieved by the terms of reference then they should have approached this Court at the first instance. He next contended that the alleged agreements with the caterer were fictitious documents, created to camouflage the identity of those nine (9) persons working in the canteen, who were actually employees of HPCL. According to Mr. Dutta, the learned Tribunal lifted the veil to identify the real dispute. Upon appreciation of the pleadings and the evidence on record, the Tribunal had come to a conclusion that the contract was a camouflage. The next contention of Mr. Dutta was that the agreements exhibited by HPCL were only for 12 months, renewals of which were done at long intervals and in the interim period, those nine (9) persons continued to work in the canteen and no other caterer was ever awarded the contract. The same caterer continued for all times to come. He urged that if the entire deposition of W.W.1 was considered, the fact that the canteen was used for the employees at Paharpur Plant and was under the control and management of corporation would be evident. The fact that HPCL was depositing the provident fund contribution of these persons prior to 1996-97 was also stated by the said witness. Mr. Dutta next relied on the deposition of W.W.2, who was one of the workmen. W.W.2 had categorically stated that the employees at the Paharpur Plant were allotted food coupons and they would take their meals by exchanging the coupons. It was further stated by the said witness that provident fund contribution was deducted from the salary of those persons and deposited by the company. In the cross-examination, W.W.2 categorically stated that Prafulla Misra was the owner of the said caterer and he denied the suggestion of HPCL that he was one of the partners of the said caterer. He also denied that he was an employee of the said caterer. Mr. Dutta referred to the documents which were exhibited to point out that HPCL had made deposits with the provident fund authorities and had also reimbursed the medical bills of these persons. Mr. Dutta urged that Uma Devi (3) (supra) did not deal with unfair labour practice and as such the decision would not apply. Lastly, Mr. Dutta contended that when the Tribunal had arrived at the finding that those persons were employees of HPCL, which is a finding of fact, this court sitting in judicial review could not interfere with such a finding.
11. Mr. Dutta relied on the decisions of Steel Authority of India Limited, Unit: IISCO Steel Plant vs. Workmen of Steel Authority of India Limited and Others, (2019) 2 LLJ 711 (Cal), G.M., O.N.G.C., Shilchar vs. O.N.G.C. Contractual Workers Union, (2008) 2 LLJ 1071 (SC), B.S.N.L vs. Bhurumal, (2014) AIR SC 1188, Hari Nandan Prasad vs. Employer I/R to Management of FCI, (2014) AIR SC 1848, Nihal Singh and Others vs. State of Punjab and Others with Bhupinder Singh and Others vs. State of Punjab and Others, (2013) 14 SCC 65, State of West Bengal & Ors. Vs. Husna Banu & Ors., (2010) 4 CalHN 438 (CAL), Heinz India Private Limited and Another vs. State of Uttar Pradesh and Others, (2012) 5 SCC 443, G.B. Pant University of Agriculture & Technology vs. State of U.P., (2000) AIR SC 2695, Chennai Port Trust vs. Chennai Port Trust Industrial Employees Canteen Workers Welfare Association and Others, (2018) 3 LLJ 252 (SC), Indian Overseas Bank vs. IOB Staff Canteen Workers Union and Anr.,2001 LLJ 1618, Parimal Chandra Raha & Ors, vs. Life Insurance Corporation of India & Ors., (1995) 2 LLJ 339, Bhilwara Dugdh Utpadak Sahakari S. Ltd. vs. Vinod Kumar Sharma Dead By Lrs & Ors., (2011) AIR SC 3546, W.W.A. Cossipore English School vs. The State of West Bengal & Ors., (2018) LabIC 3399, Eastern Coalfields Ltd. vs. Union of India & Ors., (2009) 4 CalHN 394, Hussainbhai, Calicut vs. Alath Factory Thozhilali Union, Calicut and ors., (1978) 2 LLJ 397 in support of his above contentions.
12. Heard both the parties. With regard to the first contention of Mr. Choudhury that the terms of reference was itself erroneous, I find that, although the schedule of reference pre-supposed an employer employee relationship between HPCL and those nine (9) canteen workers, the learned Tribunal had considered the contention of HPCL that, those nine (9) persons were the partners of the caterer and not employees/workmen of HPCL. Although, Mr. Choudhury contended that the management did not get an opportunity to lead evidence on the status of those persons as partners of the caterer, I find from the award that the Tribunal had considered the pleadings and evidence and had dealt with the contentions of HPCL with regard to the identity of the nine (9) persons. The schedule of reference, although, pre-supposed that existence of a employer-employee relationship, the scope of reference actually did not, in fact, prevent the Tribunal from deciding the issue as to whether those nine (9) persons were actually employees of the HPCL or not. The Tribunal took into account the pleadings, documentary evidence and the depositions of the witnesses on this issue. Most importantly, the petitioners did not challenge the reference at the first instance and submitted to the jurisdiction of the Tribunal.
13. In this case, the learned Tribunal did not restrict itself to the pre-supposition of employer-employee relationship as stated in the terms of reference, but the Tribunal also considered the pleadings and evidence of each of the parties and came to a conclusion that the contract was a fictitious one and those canteen workers were actually employees of HPCL. Thus, this court does not accept the contention of Mr. Choudhury that HPCL could not raise its preliminary objection or lead evidence with regard to the non-maintainability of the dispute before the Tribunal as the persons presumed to be workmen were partners of the contractors. I find that the Tribunal decided the real dispute between the parties. Thus, the question of quashing the reference at this stage and sending the same back to the appropriate government for a reference afresh, does not arise.
14. In the decision of Tata Iron and Steel Company Limited (supra), the reference was quashed on the ground that the same was not appropriately worded and the terms of reference did not reflect the real dispute between the parties. The reference presupposed that the respondent workmen were the employees of the appellant, thus limiting the scope of adjudication. The Hon ble Apex Court held that, the jurisdiction of the Tribunal was confined to the terms of reference, and the reference would not permit the labour court to decide the actual dispute. In the facts of that case the reference did not leave any scope for the management to state their version before the Tribunal. The facts of the case were completely different and the terms of reference did not take into account that M/s. Tata Iron and Steel Company Limited had sold its cement division to Lafarge India (P) Ltd. and one of the conditions was that M/s. Lafarge would take over the company personnel, including the workmen in terms of Section 25-FF of the said Act. The terms of reference was, whether not to take back Shri K. Chandrashekhar Rao and 73 other workmen of M/s. TISCO Ltd., Jamshedpur in service by their own TISCO management after their transfer to M/s. Lafarge India Ltd. was justified. In this case the Hon ble Apex Court observed that the terms of reference was faulty as TISCO had transferred all their personnel as well to M/s. Lafarge India Ltd. and those workmen were no longer employees of TISCO. Each judgment has to be decided on the facts before it and the facts of the case referred to by Mr. Choudhury are distinguishable from the facts before this Court.
15. In the decision of G.M., O.N.G.C., Shilchar (supra), the Hon ble Apex Court had considered a similar issue, that is, whether the terms of reference, prima facie gave an impression that the workmen were contractual employees and the only dispute was with regard to regularisation of their service. The Hon ble Apex Court held that although the reference appeared to have been loosely worded, both parties were able to address the real issues involved, in the light of the protracted litigation and the efforts made during conciliation proceedings. Their Lordships held that the Court therein had rightly observed that it was open to the Industrial Tribunal to lift the veil so as to determine the nature of employment and the dispute between the parties and for that purpose to look into the pleadings and evidence produced before it.
16. In the case in hand, the Tribunal lifted the veil and took into consideration the pleadings and evidence produced before it to determine the nature of employment and the dispute between the parties. Thus, the plea of the petitioner that the reference was not appropriately worded as it did not reflect the real dispute between the parties, does not hold good. This objection of Mr. Chowdhury under the facts and circumstances of this case is hyper technical. In this case, the Tribunal looked into the pleadings and evidence to find out the exact nature of the dispute. Elaborate arguments were made and evidence was led before the Tribunal on the status of the nine persons and the stand of HPCL.
17. A similar view was taken by the Hon ble Apex Court in the decision of The Delhi Cloth and General Mills Co. Ltd. (supra). The relevant portion of the above decision is quoted below:-
18. So far as the fourth proposition is concerned, Mr. Chari argued that the Tribunal had to examine the pleadings of the parties to seen whether there was a strike at all. In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was nonexistent and that the true dispute was something else. Under S. 10(4) of the Act it is not competent to the Tribunal entertain such a question.
18. Coming to the facts of this case, the Tribunal has considered the rival contentions of the parties on the basis of the pleadings as also evidence adduced by both the parties. Both were given opportunity to place their versions and/or contentions with regard to the status of the nine (9) persons working in the Paharpur Plant. The nature of the dispute and the respective contention of the parties were taken into consideration. Mr. Choudhury relied on the deision of D.P. Maheshwari (supra), in support of his contention that, as the Hon ble Apex Court had time and again deprecated the practice of employers approaching the High Court under Article 226 of the Constitution of India, to decide preliminary issues pending adjudication before the Tribunal, HPCL had refrained from challenging the reference at the first instance. In my opinion, the said judgment was rendered by the Hon ble Apex Court in a different set of facts and the Hon ble Apex Court had held that, exercise of jurisdiction under Article 226 of the Constitution of India was supervisory and such powers should be exercised to do substantial justice and the exercise of such jurisdiction neither by the High Court nor by the Supreme Court was required to be too astute to interfere with the exercise of jurisdiction by Special Tribunals at interlocutory stages and on preliminary issues.
19. The observations of the Hon ble Apex Court in the judgment of D.P. Maheshwari (supra) cannot be used as a shield by HPCL, for not having challenged the reference at the initial stage. Instead, HPCL submitted to the jurisdiction of the Tribunal placed their case, explained their stand, adduced evidence in this regard and invited the Tribunal to decide the matter on the basis thereof.
20. Moreover, as has already been discussed hereinabove, even if the terms of reference was loosely worded, the learned Tribunal in this case had lifted the veil and had considered the real dispute between the parties on the basis of evidence on record. Although, I do agree with the Mr. Choudhury on the proposition that, while challenging an award a party was also free to assail the reference before the High Court. Yet, in the instant case, I do not find that the scope of reference caused any detriment to the petitioner, as the petitioner was neither prevented nor precluded from placing their case and explaining their stand before the Tribunal.
21. In the decision of The State of Madras vs. C.P. Sarathy and Anr. (supra), it has been held that the Government must of course have sufficient knowledge of the nature of the dispute to satisfy itself that there was an industrial dispute within the meaning of the said Act, but beyond that no further obligation would lie on the Government to ascertain the particulars of the dispute before making a reference under Section 10 (1) of the said Act or to specify them in the order.
22. Now, I proceed to deal with the award. With regard to the contention of Mr. Choudhury that the award was made mechanically by bodily incorporating the decision of the Hon ble Apex Court in Parimal Chandra Raha (supra) requires to be considered.
23. In Parimal Chandra Raha (supra), the Hon ble Apex Court after considering all the relevant judgments in the field relating to absorption of canteen workers of different establishment and corporations had laid down the principle in paragraph 27 thereof. The relevant portions of the said paragraph is quoted below:-
[iiij The obligation to provide canteen may be explicit or implicit. Where the obligation is not explicitly accepted by or cast upon the employer either by an agree ment or an award etc., it may be inferred from the circumstances, and the provision of the canteen may be held to have be, come a part of the service conditions of the employe". Whether the provision for canteen services has become a part of the of service conditions or not is it question of fact to be determined on the facts and circumstances in each case. Where to provide canteen services has become a part of the service conditions of the employees, the canteen becomes a part of the establishment and the workers in such canteen become the employees of the management.
[iv] Whether a particular facility or service has become implicitly a part of the service conditions of the employees or not, will depend, among others, on the nature of the service/facility, the contribution the service in question makes to the efficiency of the employees and the establishment, whether the service is available as a matter of right to all the employees in their capacity as employees and nothing more, the number of employees employed in the establishment and the number of employees who avail of the service, the length of time for which the service has been continuously available, the hours during which it is available, the nature and character of management, the interest taken by the employer in providing, maintaining, supervising and controlling the service, the contribution made by the management in the form of infrastructure and funds for making the service available etc.
24. In this case, the Tribunal considered the clauses in the agreement while ascertaining whether the canteen was an integral part of the establishment. On the facts and materials before it, the learned Tribunal pierced the veil and considered the agreements with the caterer in their entirety. Some of the clauses of the agreements which were specifically considered by the Tribunal to arrive at the decision are as follows:-
Agreement dated March 14,1993
Clause 2. The caterer shall supply food, meals, tea, coffee and snacks as may be required by the corporation from time to time within the Corporation s premises situated at Paharpur, Calcutta. The items to be supplied by the caterer shall be as mentioned in Schedule A & B. These schedule form part of the Agreement. The staff canteen shall be kept open for service during working/hours on all working days.
3. The caterer shall supply items of food, meals, tea and snacks to employees of the Corporation and such other persons as may be authorized by the corporation from time to time, in such a manner as may be determined by the Corporation and advised to the caterer from time to time. All materials required by the Caterer for preparation of food, meals tea and snacks will be purchased by the Caterer. All items of food, raw materials, for food purchased will have to con-form to know quality standards and specifications as laid down by the Corporation from time to time. The grains and provisions, vegetables, meat, fish and poultry will be purchased from reputed suppliers. The Corporation of its representative will be at liberty to inspect the materials brought by the caterer at any time and also to reject and sub-standard items of materials which will be at the cost of caterer.
4. The caterer will also provide on all working days, tea or coffee to management employees twice a day including tea or coffee pots in trays to senior Managers whenever for as per items in schedule B Item No.2.
a) The Corporation shall pay to the caterer for items of food/meals and overhead expenses on a per unit basis as per the rates accepted by the Corporation and mentioned in schedules A & B attached hereto, on the basis of actual quantity provided.
b) As regard free tea/coffee served to Management staff the Corporation shall pay, on a monthly basis, the sum as accepted by the Corporation for this item per Item No.2 Schedule-B.
7. All cost of items (Meal, tea, snacks and beverages) etc. will be reimbursed to the caterer by the Corporation on his producing coupons of equivalent value and collected from the employees, wherever applicable.
15. The caterer shall provide at their own cost and expenses sufficient and competent staff to act as Dieticiancum-manager store/account/coupons/Tally clerks, cooks, Assistance cooks, Trolley vendors, snacks makers, sweet makers, tea makers, pantrymen waiters, vendors cleaners, attendants Hamals, Helpers etc. as may be reasonable required in the opinion of the Corporation for the fulfillment of the caterer s obligations under this agreement and shall give their professional expert guidance and supervision to the work. The caterer will have a competent manager on the premises of the corporation at all times who shall represent the caterer in their absence. The caterer will visit the establishment thrice a week and keep in contact with the appropriate representatives nominated by the Corporation. Any absence of the staff mentioned for more than a day will have to be suitably replaced, failing which the Corporation will have no alternative but to hire suitable replacement/s and deduct the remuneration paid by the Corporation for such replacement from the caterer. Caterer will have to provide management with a list of category of employees located at each dining room/canteen for purposes of verifications and implementation.
Agreement dated August 8,2000
2. The Caterers shall supply food/meals/tea consisting of items and tea in cups listed in Attachment-V annexed hereto or as may be required by the Corporation from time to time within the company premises at PAHARPUR LOG PLANT, P-4, oil. In tallation Road, Calcutta-700088.
3. The Caterers shall supply items of food/meals as specified under Attachment-V to employees of the company as directed by the Manager concerned and such other persons as may be authorized by the company from time to time in such a manner as may be determined by the company and advised to the caterers from time to time. The normal time for such service will be as specified in attachment-V. The caterer will purchase all the materials required by the Caterer for preparation of food/meal. All items of food, raw materials for food purchased will have to confirm to know standards and specifications as laid down by the company from time to time. The grains and provisions, meat, fish and poultry will be purchased from reputed suppliers.
4. The company shall pay to the contractor in respect of quoted rate only. The caterer shall also maintain a separate register for lunch availed by the visitor/guest, the payment of these meals would be done after verifying the same by the plant manager.
5. The food will be cooked in the kitchen provided for the purpose attachment to the dining hall. Necessary cooking utensils, gal/electric ovens heaters/gas burners etc. as required for the purpose of cooking the good will be provided by the company at their own cost.
6. The Caterer shall supply the meals as detailed in attachment IV to all staff as specified by the manager during the meal timings as detailed in attachment V annexed hereto.
7. The Caterer shall submit his bills for the proceedings monthly by 5th of the following months and the payment of bill will be made by the company within ten days from the receipt of the bill. Taxes where applicable or in force will be charged by the Caterer on every bill.
10. The company shall provid without any charge to the Caterers fuel, electricity and water as may be required for warming the food items, if necessary.
11. The company shall at its discretion make available to the caterers, furniture utencils implements and other requirement to be used in the company premises connected with the dining hall and other locations to be catered to and shall also bear the cost of normal repairs and replacement of the same. The caterers shall ensure that the furniture, utensils, implements, etc. Provided to him are always kept in a clean any hygienic conditions. In the event of any breakage s or loss and/or damages to furniture, utensils, implements and other equipment arising out of negligent handling by the caterers or their employees, the caterers shall make good the loss for such replacements or repairs.
12. The company shall provide the caterers crockery, cutlery and table ware for use in the company s premises. Breakage and shortages of these items beyond the following limits will be borne by the caterers.
14. The caterers shall provide at their own cost and expenses sufficient and competent staff as may be reasonable required in the opinion of the company for the fulfilment of the caterer s obligations under this agreement, and shall give their professional expert guidance and supervision to the work. The caterers will visit the establishment thrice and week and contact the appropriate authorities. If in the opinion of the company any staff or supervisor of the contractor is found unsuitable, the caterer shall be liable to change the supervisor/staff.
27. In the event of the caterer committing a breach of any of the terms and conditions of this agreement the company shall be entitled, subject to the right available to it under this agreement, to terminate this agreement immediately without notice or assigning any reason. On termination of this agreement in terms of this clause and other terms and conditions relating to termination of this agreement shall apply.
25. Considering the above clauses, it appears that the canteen services had been provided to the employees of the corporation for a long time. Food coupons were distributed amongst the workers to eat in the said canteen. The corporation had taken active interest in the day to day functioning of the canteen. The same caterer was awarded the contract over and over again for a long period of time and the nine (9) persons continued to work in the said canteen even between the renewals of the contract or award of fresh contract. The corporation also fixed the price, provided all utensils, furniture, electricity, gas, water, cutlery, crockery. The supervision of the canteen workers was also done by the corporation and at some point of time the provident fund deposits were also made by the corporation. On the appraisals of these facts the Tribunal came to a conclusion that the contract was just a mechanism employed by the corporation and the nine (9) persons were actually the employees of the corporation itself. In my opinion, the Tribunal did not commit any error of law in relying upon the decision of Parimal Chandra Raha (supra).
26. The Hon ble Apex Court in the decision of Chennai Port Trust (supra) held as follows:-
14. If we see the Indian Petrochemical's case, the similarity of the factual issues is quite startling. In that case -
(a) The canteen has been there since the inception of the appellant's factory.
(b) The workmen have been employed for long years and despite a change of contractors, the workers have continued to be employed in the canteen.
(c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for by the appellant.
(d) The wages of the canteen workers have to be reimbursed by the appellant.
(e) The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the contract between the appellant and the contractor.
(f) The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant.
(g) The workmen have the protection of continuous employment in the establishment.
On the basis of the above facts, the Supreme Court arrived at the opinion that the workmen were the workmen of the management and by the same process of reasoning, the learned single Judge also came to the conclusion that the canteen workmen were the workmen of the Port Trust. We see no error in this reasoning.
27. This Court cannot undertake the exercise of re-assessing the evidence and drawing conclusions on the questions of fact, being fully aware that this Court is not exercising any appellate jurisdiction over the award passed by the Tribunal, presided over by a judicial officer. The finding of fact recorded by the fact finding authority, duly constituted for the purpose, cannot be disturbed for the mere reason that the same may have been based on materials on records or evidence not sufficient or credible in the opinion of this Court as long as they were based on some materials which were relevant for the purpose. The said finding of fact, should not ordinarily be interfered with even if this Court is of the opinion that another view could be possibly taken.
28. In the decision of Indian Overseas Bank (supra) the Hon ble Apex Court laid down the tests to be applied in order to find out the existence of master servant-relationship or an employer-employee relationship. The Hon ble Apex Court held that master servant relationship could not be confined to a fixed formula having universal application to all class or category of cases. The Hon ble Apex Court further held that, in order to ascertain the nature and status of the employees, the veil may have to be pierced to get the reality. The relevant portions of the above decision are quoted below:-
17. The learned Single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reapportioning the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a Tribunal, presided over by a Judicial Officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings, at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned Single Judge and in ordering restoration of the Award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned Single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be unexpectionable. The only course, therefore, open to the Writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of re-assessing the evidence and arriving at findings of one s own, altogether giving a complete go-bye even to the facts specifically found by the Tribunal below.
18. The standards and nature of tests to be applied for finding out the existence of Master and Servant relationship cannot be confined to or concretised into fixed formula (e) for universal application, invariably in all class or category of cases. Though some common standards can be devised, the mere availability of anyone or more or their absence in a given case cannot by itself be held to be decisive of the whole issue, since it may depend upon each case to case and the peculiar device adopted by the employer to get his needs fulfilled without rendering him liable. That being the position, in order to safeguard the welfare of the workmen, the veil may have to be pierced to get at the realities. Therefore, it would be not only impossible but also not desirable to lay down abstract principles or rules to serve as a ready reckoner for all situations and thereby attempt to compartmentalise and peg them into any pigeonhole formulae, to be insisted upon as proof of such relationship. This would only help to perpetuate practising unfair labour practices than rendering substantial justice to the class of persons who are invariably exploited on account of their inability to dictate terms relating to conditions of their service. Neither all the tests nor guidelines indicated as having been followed in the decisions noticed above should be invariably insisted upon in every case, nor the mere absence of any one of such criteria could be held to be decisive of the matter. A cumulative consideration of a few or more of them, by themselves or in combination with any other relevant aspects, may also serve to be the safe and effective method to ultimately decide this often agitated question. Expecting similarity or identity of facts in all such variety or class of cases involving different type of establishments and in dealing with different employers would mean seeking for things, which are only impossible to find.
29. In the decision of Hussainbhai, Calicut (supra) the Hon ble Apex Court held that in a laisses faire economy based on common law and the Contract Act, the position may be different but in the industrial branch of Third World Jurisprudence, based on social justice, mere contracts were not decisive and a complex of considerations were relevant in deciding the real dispute.
30. The Tribunal thus came to the conclusion that the canteen was an integral part of HPCL and the workers were employees of HPCL. Excerpts from the award is reproduced below:-
All these terms and conditions provided in the agreement together with the assertions made by the workmen in paragraph 6 of their statement of claims which is also not specifically challenged to be otherwise in the reply given by the management in paragraph 15 of its written statement clearly go to show that the canteen which is provided at the Paharpur LPG Plant of HPCL is exclusively meant for the employees of HPCL and no outsider is allowed to enjoy the said facility. It is also evident that the canteen in question is not a statutory canteen like the other establishments of HPCL. However, it was provided the said canteen under its non-statutory obligation for canteen services through the canteen in question as part of its establishment for the benefit of its employees for whom it has virtually become a part of their service condition. The decision given in Parimal Chandra Raha s case (supra) which has been followed in number of subsequent decisions itself go to show that in cases where although it is not statutorily obligatory to provide a canteen, if it is otherwise an obligation on the employer to provide a canteen the canteen becomes a part of the establishment and the workers working in the canteen would be considered as the employees of the management. It has also been held therein that the obligation to provide canteen may be explicit or implicit. Where the obligation is not explicitly accepted by or caused upon the employer either by an agreement or an award etc. it may be inferred from the circumstances and the provision of the canteen may be held to have become a part of the service condition of the employees. Whether the provision for canteen services has become a part of the service condition or not is a question of fact to be determined on the facts and circumstances is each case.
In this particular case also it is found that although it is not statutorily obligatory to provide a canteen by the management since the number of employees working at Paharpur LPG Plant is not more than 250 or so. However, the management has provided a canteen and the agreement arrived at by the management vide Ext.M-52 and the terms and conditions referred to above clearly go to show that the canteen is run under the direct supervision and control of the management, though of course, through a contractor vide Exts.M-52. But, the contractor is only an agent of the management as per Clauses 2 to 16 of the said agreement which naturally provided that the contract deals with quality of food, tea, coffee etc. during the period contract remains operative from the date of contract. By Clauses 10,11 and 12 of the said agreement the management undertook to provide to the contractor free of cost space, tables, chairs, utensils, crockery, cutlery, oven, lights etc. It also makes clear that the fittings, furniture, fixtures of the canteen shall belong to the management and the premises provided by the Company is to be used only for the purpose of serving and no other purpose. Earlier to this also similar agreements were arrived at in this regard for running the canteen vide Exts. M-66 and M-69. The aforesaid terms of the agreement make it clear that the HPCL has the dominating say in dictating the terms of the contract.
Record thus clearly show that canteen services have been provided to the employees of Paharpur LPG Plant of HPCL for a long time which has been from time to time taking steps to provide the said services as stated by WW-1, Sujit Kumar Ghosh that the Paharpur LPG Plant of HPCL where the concerned workmen are working continuously for 10 to 12 years and the canteen is situated with the plant premises and the canteen is controlled and managed by the management. Attendance register is also maintained regarding those employees by an officer of the management and the canteen facility is for the sake of the employees of the corporation only and altogether 108 persons are working in the plant. So has been stated by the other witness of the workmen, namely, WW-2, Ashis Kumar Ganguly in this connection for the same. The witness examined on behalf of the management. Debashis Bhattacharya, MW.-1 has also admitted that Paharpur establishment has about 85 non-management and 10 management employees working there. Regarding the contribution of P.F. etc. he has also admitted that the document Ext.W-7 relied upon by the workman is a P.F. return submitted by the contractor quoting therein the code meant for the contractor. However, the return had been submitted by the management in this regard.
Both the appointment of the contractor and the tenure of the contract is as per the stipulation made by the Corporation in the agreement. Even the prices of the items served, the place where they should be cooked, the hours during which and the place where they should be served are dictated by the Corporation. It also shows that all the workers of the canteen have been working in the canteen continuously for a long time by the aforesaid mechanism employed by the Corporation to supervise and control the working of the canteen. The infrastructure for running the canteen viz. the premises, the furniture, electricity, water etc. are supplied by the Corporation to the managing agency for running the canteen. It also cannot be disputed that the canteen services is essential for the efficient working of the workmen and the officers of the Corporation working at Paharpur LPG Plant of HPCL. In the circumstances it is very much clear that the canteen has become a part of the establishment of the Corporation and the so called contract from time to time are in reality the agencies of the Corporation and are only a veil between the Corporation and the canteen workers. There thus is no room for doubt in coming to the conclusion that these canteen workers who have claimed the relief for their regularization are in fact the employees of the Corporation.
31. The Hon ble Apex Court in Bhilwara Dugdh Utpadak Sahakari S. Ltd. (supra) observed that in order to avoid liability under various labour statutes employers were very often resorting to subterfuge by trying to show that their employees were, in fact, the employees of a contractor. It is high time that this subterfuge must come to an end. Labour statutes were meant to protect the employees/workmen because it was realized that the employers and the employees were not on an equal bargaining position. Hence, protection of employees was required so that they may not be exploited. In this case, the employer has taken the shelter of a unique plea that the said workers were actually partners of the caterer engaged to run the canteen. This new technique of subterfuge has been adopted by the employer in order to deny the rights of the workmen under the labour statute.
32. The practice of Tribunals in lifting the veil to ascertain the relationship between the employers and employees is not alien to adjudication of disputes between employers and canteen employees. The relevant portions of the decision of the Hon ble High Court in Steel Authority of India Limited, Unit: IISCO Steel Plant (supra) is quoted below:-
23. One cannot be unmindful that employment of contract labour is a practice which has been prevalent in this country for years, but indubitably it is an unfair practice intended to exploit the labour. As the Supreme Court has commented, it is an improved version of bonded labour.
24. Looking at the award that was impugned before the learned Judge, it appears that the tribunal relied upon the decision of the Supreme Court reported in (Hussainbhai v. Alath Factory Thezhilali Union, (1978) 4 SCC 257). Reading such decision, we find that the Court was seized of the question as to who, in Labour Law, is an employee. Like the relevant High Court, decision of which was under challenge, the Court gave short shrift to the contention that the petitioner before it had entered into agreements with intermediate contractors who had hired the respondent Union's intermediate workmen and so no direct employer- employee vinculum juris existed between the petitioner and the workmen. After noticing the decision reported in (Mangalore Ganesh Beedi Works v. Union of India, (1974) 4 SCC 43), the Court held as follows:
"4. *** Indian Justice, beyond Atlantic liberalism, has a rule of law which runs to the aid of the Rule of life. And life, in conditions of poverty aplenty, is livelihood, and livelihood is work with wages. Raw societal realities, not fine-spun legal niceties, not competitive market economics but complex protective principles, shape the law when the weaker, working class sector needs succour for livelihood through labour. The conceptual confusion between the classical law of contracts and the special branch of law sensitive to exploitative situations accounts for the submission that the High Court is in error in its holding against the petitioner.
5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contract is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, halfhidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38,39,42,43 and 43-A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.
6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real life-bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off."
33. Mr. Chowdhury contended that in view of the decision rendered by the Hon ble Apex Court in Uma Devi (3) (supra), regularization of services of the persons working in the canteen was not permissible under the law. This contention of Mr. Chowdhury is not acceptable to the court, inasmuch as, in this case the learned Tribunal was not required to decide regularisation simpliciter. The dispute referred was whether the action of the management of HPCL at Paharpur in regularising the services of canteen employees at Budge-Budge and not regularising the service of the workmen working in the canteen under the caterer was justified. The Tribunal lifted the veil and came to a conclusion, on basis of the records, pleadings and evidence that, in fact, the persons working in the canteen were actually employees of the petitioner. The Tribunal came to such a conclusion from the factual aspects as were on record and as could be deduced from the circumstances. The Hon ble Apex Court in the decision of Sheo Narain Nagar and Others vs. State of Uttar Pradesh and Others, (2018) AIR SC 233 has clarified the position, as to how Uma Devi (3) (supra) was taken recourse to by employers who, in fact, practiced unfair labour practices or exploited the labour forces. Paragraph 8 of the relevant portion is quoted below:-
8. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi, (2006) AIR SC 1806 (supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily-wage basis, etc. in exploitative forms. This situation was not envisaged by Uma Devi. The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently overlooked by various State Governments/authorities. We regretfully make the observation that Uma Devi (supra) has not been implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularising the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Articles 14,16 read with Article 34(1)(
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d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India [D.S. Nakara v. Union of India, (1983) AIR SC 130] , from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits, etc. There is clear contravention of constitutional provisions and aspiration of downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/ad hoc basis or otherwise. This kind of action is not permissible when we consider the pith and substance of true spirit in Uma Devi (supra). 34. In the decision of Harinandan and another (supra), the Hon ble Apex Court held that when similarly situated workmen were regularised by the employer itself, under some scheme or otherwise, and the workmen in question who had approached the Tribunal were at par with them, decision of regularisation in such cases may be legally justified. The right of such workmen ought to be protected by the Tribunal. In this case, the Tribunal arrived at the conclusion that the nine (9) persons who were working in the canteen at Paharpur were workmen of HPCL and granted them the relief of being treated at par with the canteen workers in Budge-Budge. In the decision of Nihal Singh (supra), the Apex Court held that Uma Devi (3) (supra) cannot be become a licence for exploitation by the state or its instrumentalities. 35. Reverting to the fact of this case, the factual aspects discussed herein above, persuaded the Tribunal to come to a finding that the canteen workers were actually employees of the petitioner and the agreement with the caterer was a fictitious contract. The Tribunal found that the existence of the caterer was a camouflage. The contention of Mr. Chowdhury that the Tribunal has made out a third case by inventing a so called contractor is not accepted in view of the specific findings. 36. In the decision of Sadhu Ram vs. DTC, (1983) 4 SCC 156, while examining an award of Industrial Tribunal, guidance has been provided as to how jurisdiction of the court under Article 226 of the Constitution of India should be exercised. The relevant passage has been quoted in the decision of Steel Authority of India Limited (supra). The relevant passage therefrom is quoted below:- 28. The decision of the Supreme Court in Sadhu Ram v. DTC, (1984) AIR SC 1467 : (1983) 4 SCC 156: LNIND 1983 SC 220 : 1983-IILLJ-383, while examining an award of an industrial tribunal, also provides useful guidance. A relevant passage therefrom is quoted below: 3...............The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those tribunals. That the question decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. 37. In the decision of Bhurumal (supra), the scope of judicial review in matters relating to industrial disputes has been elaborated in paragraph 15 thereof which is quoted below:- 15. It is apparent that the aforesaid findings are findings of fact. Such findings are not to be interfered with by the High Court under Article 226 of the Constitution or by this Court under Article 136 of the Constitution. Interference is permissible only in case these findings are totally perverse or based on no evidence. Insufficiency of evidence cannot be a ground to interdict these findings as it is not the function of this court to reappreciate the evidence. It was because of this reason that learned counsel for the appellant made frontal attack on the findings of the courts below endeavoured to demonstrate that there was perversity in the fact finding by the CGIT which was glossed over by the High Court as well. 38. Thus, I do not find that the award is either perverse or suffers from error apparent on the face of record. The Tribunal did not commit any procedural irregularity. The award does not call for any interference. The award is upheld. 39. Moreover, the dispute was referred in the year 1998. 21 years have passed by. Three (3) persons have expired. Six (6) of the canteen workers are remaining. It is high time that the matter should be put at rest. 40. This writ petition is dismissed. 41. There will be, however, no order as to costs. Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis. Later The learned Advocate for the petitioner prays for stay of operation of the judgment and order. Stay is refused.