Central Bank of India and Others Vs Central Bank Canteen Boys Association

A.K. Patnaik, J.@mdashThis is an appeal against the judgment and order dated 23.8.1999 of the learned Single Judge in Civil Rule No. 4509/94 allowing the writ petition of the Respondent.

2. The Respondent Association is a Trade Union registered under the Trade Union Act, 1968. The members of the Respondent Association are employed as Canteen Boys in the Staff Canteens "of the different branches of the Central Bank of India located in the North-Eastern Region. They have been serving in the Canteens for quite sometime, the oldest member has been employed since 31.10.1984 and the latest member had been employed since 3.3.1993. The Respondent submitted representations dated 23.2.1994 and 24.6.1994 requesting the authorities of the Central Bank of India to absorb the canteen boys as regular employees of the Bank, but as they were not absorbed as such regular employees of the Bank, the Respondent Association filed Civil Rule No. 4509/ 94 before this Court. The case of the Respondent is that different Canteens were set up by the Central Bank of India (for short the Bank) as a measure of staff welfare. The Canteens are recongnised by the Bank and are directly controlled by the respective Canteen Committees set up by the Bank. The Canteen Committees are all manned by Bank Officers working in the respective offices/branches of the Bank. The Canteens are, therefore, under the administrative control of the Officers of the Bank. The Canteen Boys have been issued Identity Cards and Certificates by different Canteen Committees of the respective branches. Utensils, furniture, electricity, water, gas connections, office space etc. are being financially provided by the Bank and even the salaries paid to the Canteen Boys are being reimbursed by the Bank. The further case of the Respondent in the writ petition is that some Canteen Boys are called upon to undertake cleaning and conservancy services of the Bank from time to time and are paid daily wages for additional services rendered by the Bank. They are, therefore, employees of the Bank and yet are being paid much less than the regular scale of pay by the Bank and are not even paid minimum wages notified by the Government. The further case as made out in the writ petition is that the Canteen Boys of Purbanchal Bank Ltd. which has amalgamated with the Central Bank of India have been treated as regular staff of the Bank with higher scale of pay while the members of the Respondent Association who have been discharging similar duties and responsibilities have not been treated as a regular staff and are being paid much lower pay contrary to the principle of equal pay for equal work. In the said writ petition, the Respondent prayed for a direction on the appellants to absorb the members of the Respondent Association as employees of the Bank and to pay them regular scale of pay with all allowances as applicable to regular employees of the Bank.

3. The appellant filed an affidavit-in-opposition in the said writ petition through the Chief Manager (Personnel). Central Bank of India. In the said affidavit-in-opposition, the appellants denied that the Canteen Boys were all employees of the Bank and instead contended that they were all employees of the respective Canteen Committees. They also stated in the said affidavit-in-opposition that the management of the Bank has no control over the management and functioning of the Canteen Committees which have employed the Canteen Boys. The appellants have further stated in Para-11 of the affidavit-in-opposition that the management of the Bank is also under no obligation to provide for canteen service to the staff of the Bank and it is the staff of the Bank who have set up Canteen Committees for managing the Canteens. Regarding the Canteen Boys of the erstwhile Purbanchal Bank Ltd. amalgamated with the Central Bank of India the appellants have stated in the said affidavit-in-opposition that the Canteen Boys were employees of the Purbanchal Bank Ltd. with the Central Bank of India and the Canteen Boys became employees of the Central Bank of India in terms of the notification dated 28.8.1990 issued by the Central Government u/s 45(7) of the Banking Regulation Act, 1949. The case of the Canteen or Tea boys of the erstwhile Purbanchal Bank Ltd. was thus not similar and identical with those of the members of the Respondent Association who, at no time, were employees of the Bank.

4. By the judgment and order dated 23.8.1999 the learned Single Judge allowed the writ petition and directed the appellants to give the status of sub-staff to the members of the Respondent Association and to give them notional benent with regard to seniority from the date of their initial engagement. Aggrieved by the said judgment and order of the learned Single Judge, the appellants filed this writ appeal. On 10.12.1999, while admitting this appeal, the Court stayed the implementation of the impugned judgment and order of the learned Single Judge.

5. Mr. P.G. Baruah, the learned counsel appearing for the appellants submitted that it will appear from the impugned judgment and order of the learned Single Judge that the learned Single Judge has followed the decision of the Supreme Court in Parimal Chandra and Others Vs. Life Insurance Corporation of India and Others, while granting the relief to the members of the Respondent Association, but in the aforesaid case the Supreme Court held that either statutory obligation or some other obligation explicit or implicit must be cast on the employer to maintain a Canteen for the use of its employees and only then can the staff employed in such Canteen be treated as employees of the employer. But, in this case, there is no statutory obligation on the Bank to provide and maintain Canteens for the use of its employees and there is also no other explicit or implicit obligation on the Bank to provide and maintain Canteens for use of its employees, and the Canteens are established and run by a Canteen Committee for the benefit of staff in different branches of the Bank. Thus, the decision of the Supreme Court in Parimal Chandra Raha v. Life Insurance Corporation of India (supra) relied on by the learned Single Judge in the impugned judgment and order did not apply to the facts of the present case. Mr. Baruah next submitted that the factual averments in the writ petition that the salaries of the Canteen Boys employed in the Canteens in the different branches of the Bank in the North-Eastern Region are being reimbursed have been denied in the affidavit-in-opposition filed by the appellants in reply to the writ petition. Similarly, the averments made in the writ petition that utensils, furniture, electricity, water, gas connection etc. are being financed by the Bank have also been denied in the affidavit-in-opposition of the appellants. He submitted that the Canteen Boys are employed by the Canteen Committees and the Bank has no control over such Canteen Boys working under the Canteen Committee, who are being paid by the Canteen Committees. Mr. Baruah further submitted that before the amalgamation of the Purbanchal Bank Ltd. with the Central Bank of India, the Tea/ Canteen Boys of Purbanchal Bank Ltd. were employees of the Purbanchal Bank and for this reason this Court in Civil Rules No. 3374/91 and 2232/91 and in Writ Appeal Nos. 24/93 and 29/93 held that Tea/Canteen Boys of the Purbanchal Bank are to be treated as employees of the Central Bank of India on amalgamation of Purbanchal Bank with the Central Bank of India. According to Mr. Baruah, therefore, the cases of such Tea/Canteen Boys of Purbanchal Bank Ltd. are not similar or identical to that of the Canteen Boys of the Bank who have not been employees of the Bank at any stage and have been although employees under the Canteen Committees. He contended that the learned Single Judge is not right in coming to the conclusion in the impugned judgement and order that the Canteen Boys working in different Canteens are entitled to the same benefit as the Tea/Canteen Boys of the erstwhile Purbanchal Bank Ltd. amalgamated with the Central Bank of India. Mr. Baruah finally submitted that in any case since there were factual disputes between the parities relating to the implicit obligation of the Bank to maintain the Canteens for the use of its employees and relating to the control of the Bank over the Canteen Boys employed in the Canteens, the learned Single Judge should have held that the disputes cannot be resolved in a writ petition under Article 226 of the Constitution but by the Industrial Tribunal on a reference being made to it under the Industrial Disputes Act, 1947.

6. Mr. R.P. Sarma, the learned counsel appearing for the respondent, on the other hand, supported the impugned judgment and order of the learned Single Judge. He submitted that the learned Single Judge has allowed the writ petition following the decisions of the Apex Court in M.M.R. Khan v. Union of India 1990 SCC 937 (supra); Parimal Chandra Raha v. Life Insurance Corporation of India & Ors (surpa) and Employers in relation to the Management of Reserve Bank of India Vs. Their Workmen, The learned Single, Judge has also held that when the Canteen Boys working in the Canteens in the Purbanchal Bank amalgamated with the Central Bank of India have been treated as employees of Bank, there is no justification as to why the Canteen Boys in the Canteens of the Central Bank of India should not get the same benefit. Mr. Sarma contended that the materials on record in Civil Rule No. 4509/94 will show that Canteen Committees are under the control of the officers and the management of the Bank. He also referred to the averments in the writ petition and affidavit-in-reply filed by the Respondent in the said Civil Rule to show that the expenses incurred by the Canteen on purchase of utensils, gas connection, wages of the Canteen staff are being reimbursed to the Canteen Committees as Canteen subsidy under the circulars of the Bank to the extent indicated in the said circulars. He further argued that sometimes, these Canteen Boys are also employed as casual employees by the Bank in some leave vacancies. Mr. Sarma submitted that the definitions of ''industry'' and ''workmen'' in the Industrial Disputes Act, 1947 ''employer'' in the Minimum Wages Act, 1948, ''workmen'' in the State Bank of India Act, 1955 and ''employees'' in the Employees'' State Insurance Act, 1948 would show that Canteen Boys employed in different Canteens of the Bank are employees of the Bank. Mr. Sarma finally contended that the 24 Canteen Boys employed in different Canteens of different branches of the Bank are being paid meagre salaries much less than the minimum wages and the learned Single Judge rightly directed the appellants to treat them as employees of the Bank and to pay them regular scale of pay and this is not a fit case in which the Division Bench should interfere with the impugned judgment and order of the learned Single Judge in this writ petition.

7. On a perusal of the impugned judgment dated 23.8.1999 of the learned Single Judge, we find that the learned Single Judge following the decisions of the Supreme Court in M.M.R Khan v. Union of India (supra), Parimal Chandra Raha v. LIC and Ors. (supra), and Employees Management of the RBI v. Their Workmen (supra) has held that members of the Respondent Association are entitled to status of sub-staff in the Bank. The learned Single Judge has further held that there was no justification as to why when the employee of the erstwhile Purbanchal Bank Ltd. amalgamated with the Central Bank of India have been given the benefit, the members of the Respondent Association who are similarly situated should also not be given the same benefit. Hence, we have to examine as to whether these two reasons which weighed with the learned Single Judge to grant the relief to the members of the Respondent Association were good and valid reasons for directing the appellants to treat the members of the Respondent Association as sub-staff of the Bank.

8. Regarding the Tea Boys or Canteen Boys of Purbanchal Bank Ltd. which now statnds amalgamated with the Central Bank of India, we find, they have been treated as employees of the Central Bank of India pursuant to the impugned judgment of this Court in Writ Appeal Nos. 24/93 and 29/93 which were filed against the common judgment of the Civil Rule Nos. 2232/91 and 3374/91. Para-4 of the said judgment duted 8.7.1993 of the Division Bench in the said Writ Appeals which is relevant for the purpose of this case is quoted hereinbelow:

"The conclusion of the learned Single Judge that the Tea Boys or Canteen Boys were employees of Purbanchal Bank is a conclusion of fact. We will not interfere with the said conclusion unless the same Is perverse or wholly contrary to the law. Some of the circulars issued by Purbanchal Bank as well as the Central Bank had a category of employees, though not regular employees, consisting of Tea Boys or Canteen Boys. It is true that these boys function under the supervision of what are called Canteen Committees. But the circulars referred by the learned Single Judge would show that Purbanchal Bank took the entire responsibility for payment of wages or salary of the Tea Boys. That being so, we find no ground to interfere with the finding of the learned Single Judge that the Tea Boys were employees of the Purbanchal Bank Ltd. If that be so, there can be no controversy that by virtue of operation of Section 45(5)(i) of the Act thay have to be treated as employees of the Central Bank, successor of the Purbanchal Bank."

It will be clear from the aforesaid portion of the judgment of the Division Bench of this Court in Writ Appeal Nos. 24/93 and 29/93 that the learned Single Judge had reached a conclusion of fact in his common judgment in Civil Rule Nos. 2332/91 and 3374/91 that the Tea Boys or Canteen Boys were employees of Purbanchal Bank before its amalgamation with the Central Bank of India and for the reason has held that they be treated as employees of the Central Bank of India after its amalgamation by virtue of operation of Section 45(5)(i) of the Banking Regulations Act, 1949. But, in this case the appellants in its affidavit-in-opposition filed in the Civil Rule No. 4509/94 have denied that the Canteen Boys who were members of the Respondent Association are employees of the Bank. On this disputed question, no finding has been recorded by the learned Single Judge in the impugned judgment that the Canteen Boys who arc members of the Respondent Association are actually employees of the Bank. Hence, the case of the members of the Respondent Association cannot be equated with the case of Tea Boys or Canteen Boys of the erstwhile Purbanchal Bank Ltd. which now stands amalgamated with the Central Bank of India.

9. Coming now to the decisions of the Supreme Court on which the learned Single Judge has relied on for granting relief to the members of the respondent association, we find that in M.M.R. Khan v. Union of India (supra), the Supreme Court held that employess of the statutory canteens maintained by the Railway Administration as part of its statutory obligation under the Rules made by the State Government u/s 46 of the Factories Act as well as employees of non-statutory recongnised canteens maintainedby the Railways Administration under para 2831 of the Railway Establishment Manual are employees of the Railways, but employees of non-recognised canteens which have not been started with the approval of the Railway Board under para 2831 of the Railway Establishment Manual though started with the permission of the Railways cannot be treated as employees of the Railways. The reason given by the Supreme Court is that whereas there is obligation on the part of the Raiways to maintain the satutory canteens and non-statutory recognised canteens, there is no such obligation of the Railways to maintain non-statutory non-recognised canteens. In Parimal Chandra Raha v. LIC and Ors. (supra) relied on by the learned Single Judge, the Supreme Court found that although there is no explicit obligation on the part of the LIC to provide canteen facilities to its employees working in its office, the facts on record did show that the Corporation had implicit obligation to provide canteen facilities and not merely the facilities to run the canteen. The various facts on record in the different paragraphs of the counter affidavit filed on behalf of the Corporation and of the writ petition before the learned Single Judge in the High Court have been detailed in paragraph 27 of the judgment as reported in Parimal Chandra and Others Vs. Life Insurance Corporation of India and Others, at pages 628, 629, 630, 631, 632 and 633. In Employees Management of the RBI v. Their Workmen (supra) the Supreme Court found that the Reserve Bank of India had provided canteen facilities to its employees in different offices and the canteens are run either by the Implementation Committee (Canteen Committee) or Cooperative Society or Contractors and the Bank was making grants by way of subsidy at 95 per cent of the costs incurred by the canteens for payment of salary, P.F. contribution, Gratuity, Uniform etc. besides providing fuel, water, fixtures, utensils, furniture, electricity premises etc. free of charge. But the Supreme Court found that there was no right in the Bank to supervise and control the work done by the persons employed in the committee nor had the Bank any right to direct the manner in which the work shall be done by various persons and the Bank had no right to take any disciplinary action or to direct any canteen employee to do a particular work and the Bank was under no legal obligation to run the canteen. The Supreme Court held that in the absence of any obligation, statutory or otherwise, regarding the running of a canteen by the Bank and in the absence of any effective or direct control in the Bank to supervise and control the work done in the canteen, the workers in the canteen run by the Implementation Committee (Canteen Committee) cannot be said to be employees of the Bank.

10. Thus, in all the aforesaid three decisions of the Supreme Court on which the learned Single Judge had placed reliance on, it was held that the employees of the canteens are to be treated as employees of the organisation for whose staff the canteens were being run if there was obligation, statutory or otherwise, on the" organisation to maintain canteens for its staff. In the present case, the Respondent Association has not been shown that there was any statutory obligation on the part of the Central Bank of India to maintain Canteens. Although in para-5 of the writ petition filed by the Respondent Association in Civil Rule No. 4509/94, it has been stated that the canteens are recognised canteens set up by the Bank and are directly controlled and supervised by the respective Canteen Committees and the Canteen Committees are all manned by Bank Officers working in the respective offices/branches who are responsible for the administrative control of these canteens, the appellants in their affidavit-in-opposition filed in the said Civil Rule before the learned Single Judge have disputed the said statements. Relevant portion of para-11 of the affidavit-in-opposition filed by the appellants in the said Civil Rule before the learned Single Judge is quoted hereinbelow:

"The management is also under no obligation to provide for canteen service to the staff of the Bank and it is the staff who themselves set up Canteen Committees for managing the Canteen set up by them and those Canteen Committees employed the persons and pay their salaries. The Bank management never controls the functioning of such Canteen are not parts of the establishment of the Respondent Bank. This deponent further states that the service condition of the staff of the respondent Bank does not include the provisions of the service condition and as such the Bank management is not under any obligation to provide any canteen facility to the staff. The Canteen are solely established by the staff of their own and managed by the Canteen Committees formed by the staff of the Branch in which there is a Canteen."

The learned Single Judge has, however, held that the Canteens have been provided by the Bank in terms of the paragraph 609 of the Shastry Award, but the Supreme Court had held in the case of SBI v. SBI of India Canteen Employees'' Union AIR 2000 SC 1518 that paragraph 609 of the Shastry Award does not cast any obligation on the Bank to provide canteen facilities for its staff. Thus, there are disputes between the parties as to whether or not there is an obligation on the part of the Bank to provide canteen to the employees of the Bank and further as to whether or not the management of the Bank has any control over the canteens Boys working in the canteens. Without recording a finding on these disputes and without coming to a definite conclusion that the Bank was under statutory or other obligation to provide canteen service to the employees of the Bank and had also control over the Canteen Boys employed in the Canteens, the Court cannot direct the Bank to treat the Canteen Boys employed in the Canteens as sub-staff of the Bank. The three decisions of the Supreme Court relied on by the learned Single Judge do not support the impugned judgment and order.

11. Mr. R P Sarma, the learned counsel for the Respondent Association, however, cited the recent judgments of the Supreme Court in IOB v. IOB Staff Canteen Workers'' Union AIR 2000 SC 1508 , SBI v. SBI of Indian Canteen Employees'' Union AIR 2000 SC 1518 , G.B. Pant University of Agriculture and Technology, Pantnagar, Nainital Vs. State of Uttar Pradesh and Others, Union of India and Others Vs. M. Aslam and Others etc, and Indian Petrochemicals v. Shramik Sena AIR 2001 SC 957,which have been delivered after the impugned judgment and order dated 23.8.1999 of the learned Single Judge.

12. On a perusal of the decision of the Supreme Court in IOB v. IOB Staff Canteen Workers'' Union (supra) we find that in that case the dispute between the Bank and its workers union was referred to the Industrial Tribunal in Channai and the Tribunal after considering the pleadings and the oral and documentary evidence adduced by both the parties found the following facts : the canteen is in the premises of the Bank, the canteen is for the exclusive use of the staff of the Bank, the working hours and days of the canteens were the same as that of the Bank, the Bank provided infrastructures like furniture, utensils, refrigerators, water coolers apart from meeting the cost of gas, electricity and water, the cost of materials and the wages of the workmen were out of the funds provided by the Bank, neither the workmen nor Managing Committee contributed capital or the expenses for running the canteens, the Bank gave the subsidy for supply of food articles to its employees at concessional rates and the Bank even provided Cycles for supply of food-stuff and because of these facts the learned Tribunal concluded hat the employees of the canteen will have to be treated as employees of the Bank despite the fact that the ultimate control and supervision over the employees of the canteens were also with the Managing Committee and the employees of the canteens were appointed only by the Managing Committee. The award of the Tribunal was challenged in a writ petition under Article 226 of the Constitution of India before the High Court. The learned Single Judge of the High Court reappreciated the evidence before the Tribunal and came to a different conclusion and set aside the award. Writ Appeal was filed before the Division Bench of the High Court by the workers Union and the Division Bench set aside the order of the learned Single Judge and restored the award of the Tribunal after aking a view that not only the Bank in question had an obligation to run the canteens but in fact the Bank was only running the canteens. The Supreme Court did not interfere with the findings of fact recorded by the Tribunal as well as the Division Bench.

13. In SBI v. SBI of India Canteen Employees'' Union (supra) cited by Mr. Sanna, the Supreme Court held that no part of the Shastry Award including paragraph 609 thereof cast any obligation on the Bank to provide canteen facilities by running canteens for its staff and that employees of the canteens run by the Local Implementation Committees as per the welfare scheme framed by the Bank would not become employees of the Bank as the Bank did not have any statutory or contractual obligation or obligation arising out of the Award to run such canteens. The Supreme Court found that the Bank is not employing the canteen workers and is not supervising and controlling the workers appointed by the Local Implementation Committees. The Supreme Court found that the Bank was not taking any disciplinary action or directing any canteen employee to do any particular work. On these facts, the Supreme Court held that the employees of the canteens cannot be treated as employees of the Bank.

14. In G.B. Pant University of Agriculture & Technology v. State of U.P. and Ors. (surpa) cited by Mr. Sarma, it was found that the regulations framed under statute made a provision for canteen facilities and that the Vice-Chancel lor, the Warden and the Food Managers were involved in the running of the canteens. Since the twin tests of obligation for running the canteens on the University and of overall control and supervision over the canteens by the University were satisfied in this case, the Supreme Court held that the employees of the canteen were to be treated as employees of the'' University.

15. In Indian Petrochemicals Corporation Ltd. v. Shramik Sena (surpa) cited by Mr. Sarma, the canteens were being run by the management u/s 46 of the Factories Act, 1948 and, therefore, the employees working under the said contractor in the said statutory canteens were held by the High Court to be employees of the principal employer, namely, the management and ordered by the High Court to be absorbed subject to the conditions mentioned in the order. The order of the High Court was challenged and was set aside by the Supreme Court to the extent indicated in the judgement of the Supreme Court. In Union of India v. Md. Aslam (supra) cited by Mr. Sarma, the Supreme Court found that the Unit-Run-Canteens are part of the Canteen Stores Department in Defence Service and held that since the Canteen Stores Department forms part of the Government in the Ministry of Defence, there was no reason as to why the employees of such Union cannot be held to be the Government employees and the Central Administrative Tribunal would have the jurisdiction to entertain the applications filed by such employees under the provisions of the Administrative Tribunal Act. 1985.

16. The decisions of the Supreme Court discussed above would show that the Court will have to record a finding that there was statutory or other explicit or implicit obligation on the part of the organisation to maintain the canteens for staff and only then can the staff of such canteens be treated as employees of the organisation. No such statutory obligation on the Bank to maintain the canteens for its staff has been established in this case. As to whether or not there is a non-statutory obligation, either explicit or implicit, on the Bank to maintain the canteens in which members of the respondent Association are working as canteen boys and as to whether the control and supervision is being exercised by the Bank over these canteens and the canteen boys employed, cannot be decided by this Court in the present case as the materials before this Court are not adequate to enable the Court to decide one way or the other and the disputes between the parties in the present case can be more aptly decided by the Industrial Tribunal.

17. For the aforesaid reasons, we set aside the impugned judgement and order dated 23.8.1999 of the learned Single Judge in Civil Rule No. 4509/94 and instead direct that copies of the writ petition, the aflidavit-in-opposition and the affidavit-in-reply filed in the said Civil Rule and a certified copy of this judgement and order will be submitted by the Respondent Association to the appropriate department of the Central Government who will refer the disputes between the parties under the Industrial Disputes Act, 1947 to the appropriate Tribunal within a period of two months from the date of receipt of this judgment from the Respondent Association and the appropriate Tribunal will decide the disputes between the parties within a period of six months from the receipt of reference after giving due opportunities to the paries in accordance with law.