ORDER
1. These petitions have been filed by the Karnataka Government Secretariat Departmental Canteen Employees Welfare Association (hereinafter referred to as 'the Canteen') and two others, seeking for a writ of certiorari to quash Annexure-A and endorsement dated 12-7-1995 bearing No. DPAR 45 DCK 95 and for a writ of mandamus directing the respondents to treat the employees of the KGSD Canteen (like the petitioners) on par with the other Civil Servants of the State and further to grant all allowances and benefits including pensionary benefits etc.
2. Petitioners in these petitions state that the State Government has constituted a canteen called the Karnataka Government Secretariat Departmental Canteen for its employees in the year 1974. Since then the canteen is being managed by the Government. The Government is providing various infrastructure facilities for running the canteen efficiently. The administrative and financial control of the canteen is in the hands of the State Government.
3. In reply to the petition, respondents have put in appearance. Respondents admit that they have constituted the canteen for its employees. Their contention is that the Government is not the real employer and the canteen is being maintained by the Committee therefore, notwithstanding the facilities provided by the Government to the canteen the employees working in the canteen cannot be treated as employees of the State Government.
4. Learned Counsel for the petitioners as well as the respondents have filed various documents in support of their case during the course of argument. Additional documents have also been filed by the petitioners on 3-1-2000 with an advance copy to the respondents. Elaborate arguments have been advanced by the petitioners' Counsel Sri M.C. Narasimhan and Sri D'Sa, Additional Government Advocate, appearing for the State Government on several days. During the pendency of the petition the matter was adjourned from time to time by me on the ground of an amicable settlement in the matter. Parties on the last date of hearing have stated that no settlement as such is possible and hence I was required to pass an order in these petitions.
5. Learned Counsel for the petitioners has taken me through various documents to establish the control of the Government in running the canteen. He has also referred to various documents to show the policy decision of the Government to treat the petitioners as its own employees and to provide for a pay scale. He has also referred to the various case laws on the subject in support of his case. Since I would be referring to all these documents in the subsequent paragraph I do not think that I should refer to them at this stage.
6. Per contra, Mr. D'Sa, learned Additional Government Advocate argued that all the documents read as a whole would show that it is not the Government which runs the canteen. It is being managed by a private committee appointed by the Government. His argument is that the employees of the canteen are appointed by the committee and not by the Government, as such they cannot be treated as civil servants.
7. I have heard the Counsel at great length. I have also perused the writ averments, voluminous documents and the case laws on the subject. I am of the view that the factual aspect has to be seen factually to find out the real employer. Petitioner in this petition has urged that this canteen was constituted in the year 1974.
Annexure-B1 is an order passed by the State Government. The said order dated 19-10-1974. It refers to various Government Orders passed from time to time in the matter of KGSDC sanctions. In para 2 it is mentioned that the canteen has to be run departmentally by a committee appointed by the Government with a Department Secretary asChairman. The said order further provides for providing all amenities and facilities namely, the premises, furniture, cooking utensils, crockery, cutlery etc., for running the canteen as provided to the Indian Council of Social Welfare. The said order further states that sanction has been accorded to run the canteen in the Government Building near Sudarshan Guest House departmentally by a Committee appointed with a Deputy Secretary as Chairman, as a staff welfare measure. The Government also agrees to provide free power and other facilities as also a grant of Rs. 25,000/- to meet the working expenses. It is also seen that the grant is debited to the new sub-head 'IV Grant to the Karnataka Government Secretariat Canteen (Non-plan)' 'under the major, minor, and group sub-head' '288 - Social Security and Welfare - E - Other Social Security and Welfare 'Programmers - 4 - Other Programmers-C. Welfare of Government Employees'. It is stated that the said order is issued with the concurrence of the Finance Department.
Annexure-B2 is the proceedings of the meeting held on 24-7-1974. It is seen that the Joint Secretary GAD, DS GAD (SR), DS GAD (Administration), DS GAD (Political) etc., have discussed in detail and agreed to provide a canteen for the employees. The object of the canteen is to provide maximum benefit to the employees from the canteen. It is evident from the order bearing No. GAD 114 DMB 72, Bangalore, dated September 1974 that services of two officials on a full-time basis is provided to look after the affairs of the canteen and the salaries of the two officials are met wholly by the Government.
Annexure-C1 is an order issued by the Government constituting a committee with the Deputy Secretary, HMA Department as Chairman along with other members. There are as many as ten members in the Committee. From out of 10 members five are representatives of the Government and the remaining five are the representatives of the employees. The said order has been issued in the name of the Government vide order dated 10-12-1975. It is an order of sanction of continuing the existing committee. Subsequently the Government has issued various orders in the matter of continuing the committee. Petitioners have filed the various orders of continuation. Petitioners have also filed an order dated 8-11-1975 to show that the Government has issued an order to purchase the materials from the Janatha Bazar. The proceedings of the Government of Karnataka dated 2-11-1977 shows the sanction granted for the continuance of the staff of the KGSD Canteen consisting of a Senior Assistant (Manager), Assistant (Accounts Clerk), and Typist. It was ordered that the expenditure on the above staff shall be debited to the Head '252-Secretariat-General Services-1. Secretariat-1. Karnataka Government Secretariat-1. Pay of Establishment'.
The proceedings dated 6-3-1976 at Annexure-D2 is again another sanction order providing for continuance of the staff of the KGSD Canteen. There are subsequent orders which has been filed at Annexure-D3 by the petitioners.
The Government has granted a sum of Rs. 25,000/- towards work expenses as per Annexure-E1. Annexure-E2 is another order dated 14-10-1993 issued by the Government.
Annexure-E3 is again a grant order dated 26-6-1992. The State Government has accorded its approval for release of a monthly grant as subsidy to meet the expenditure of canteens towards increased wages with the concurrence of Finance Department.
Annexure-E4 is an order dated 14-3-1978 providing for a sum of Rs. 25,000/- towards working expenses, purchase of provisions etc.
Annexure-G1 is an official memorandum in which it is mentioned that Under Secretary and Senior Assistant, Health and Family Welfare Department, members of the purchase committee are permitted to attend the work of purchases once in a fortnight and the period so spent by them is treated as on duty.
Circular dated 29-9-1978 is issued by the Under Secretary to Government in the matter of running the canteen efficiently. The committee has written to the Government to exempt the canteen by letter dated25-1-1987.
8. As mentioned earlier there used to be a demand for pay revision. In this regard special committee has been constituted and the said committee has submitted its report. In the said report the committee has mentioned that the canteen employees should be given atleast the pay scale of the State Government. A demand to consider the canteen employees as Government employees was made as per Annexure-K. In the legislative council it is mentioned by the Government that the matter would be considered. Several representations submitted to the then Minister and the same has been attached in support of the petition. Petitioners have also filed a notification dated 22-5-1996 bearing No. DPAR 55 HET 82 as Annexure-O providing for certain pay scales in respect of Government Hospitality Organization. This is filed to show that the employee of Hospitality Organizations are on par with the canteen employees. The said notification provides for various pay scales to waiters, clerks, typists, cook etc.
9. Petitioners have also filed the proceedings of the Maharashtra Government in support of their case. Annexure-Q is the proceedings of the meeting held in chambers of the Secretary to the Government dated 7-12-1993 bearing No. DPAR 38 DSW 93, to discuss the demands of the employees in the matter. Mention is made with regard to the Maharashtra Secretariat Canteen being directly managed by the Government of Maharashtra in the said proceedings. Additional documents have been attached by the petitioners on 3-1-2000. The letter dated 19-4-1979 indicates that the audit of the accounts of the canteen is met by the State Accounts Department. The Government Order dated 19-7-1983 indicates the waiver of audit fees in respect of this canteen. There are various documents filed by the petitioners which show the accounts being audited by the State Accounts Department. The petitioners havealso filed an order dated 24-7-1991 passed by the Chief Secretary imposing punishment on an employee of the canteen.
10. From the reading of the various averments made in the writ petitions and in the light of the various documents referred to above it is clear to me that this canteen has taken its birth from the Government funds. The canteen is established by the Government. The canteen is run for the welfare of the employees of the State Government. The various Government Orders issued from time to time show that the Government is having both administrative and financial control over the a flairs of the canteen. The Accounts of the canteen is being audited by the State Accounts Department. Provisions are being purchased by the purchase committee consisting of Government Officers. Even the Managing Committee consists of several officers of the Government. A careful reading of these documents show that there is pervasive control of the Government not only in the day-to-day administration but also overall control in all aspects of the matter including purchase, administration, finance etc. The disciplinary action is also being exercised by the Government. When there is such a pervasive control can it be said that the Government is not the employer, as contended by the respondent?
11. Respondents in the statement of objections have repeatedly stated that the canteen is looked after by the canteen managing committee, Courts have ruled that in these matters one has to lift the veil to find out as to who is running the affairs of the canteen. After the lifting of the veil, in this case, it is very clear to me from the various Government Orders, it is the Government which is running the canteen through a committee probably as an intermediary agent for its convenience. That by itself does not mean that the Government is not running the canteen as contended. Therefore the defence of the Government that it has no say in the matter or that the committee alone is answerable does not appeal to me. The material facts and the material documents which have been duly issued in the name of the Government categorically prove that it is nothing but departmental canteen run by the Government. Therefore I have no hesitation in saying so in this order.
12. Learned Counsel for the petitioners has placed on record some judgments of the High Court on this very issue. Now the Supreme Court in its latest ruling in identical circumstances has issued certain directions in the case of Indian Overseas Bank v Indian Overseas Bank Staff Canteen Workers' Union and Another. In the light of the clear pronouncement of the judgment of the Supreme Court, I am not referring to the judgments of the High Court in this case.
13. Recently, the Supreme Court in the case of Indian Overseas Bank, supra, has ruled in paras 22 and 23 as under:
'22. The factual findings recorded by the Tribunal and the Division Bench as also the material relied upon therefor, have been already set out in detail, supra, and it is unnecessary to referto them in greater detail once over gain. The canteen in question was being run from 1-1-1973 and even before then, indisputably, the Bank itself had arranged for running of the same through a contractor and similar arrangement to run through a contractor was once again made by the Bank on its closure on 26-4-1990, though after a period of some break from 21-10-1992. Besides this, the nature and extent of assistance, financial and otherwise in kind, provided which have been enumerated in detail would go to establish inevitably that the Bank has unmistakably and for reasons obvious always undertaken the obligation to provide the canteen services, though there may not be any statutory obligation and it will be too late to contend that the provision of canteen had not become a. part of the service conditions of the employees. The material placed on record also highlight the position that the Bank was always conscious of that fact that the provision and availing of canteen services by the staff are not only essential but would help to contribute for the efficiency of service by the employees of the Bank. That it was restricted to the employees only, that the subsidy rate per employee was being also provided and the working hours and days of the canteen located in the very Bank buildings were strictly those of the Bank and further fact that no part of the capital required to run the same was contributed by anybody else, either the promoters or the staff using the canteen are facts which strengthen the claim of the workers. It was also on evidence that the canteen workers were enlisted under a welfare fund scheme of the Bank besides making them eligible for periodical medical check up by the doctors of the Bank and admitting them to the benefits of the Provident Fund Scheme. The cumulative effect of all such and other facts noticed and considered in detail provided sufficient basis for recording its findings by the Tribunal as well as the Division Bench of the High Court ultimately to sustain the claim of the workers, in this case.
23. The learned Single Judge seems to have not only overlooked certain relevant material but by adopting a negative approach had belittled the relevance and importance of several vital and important factual aspects brought on record. If on the facts proved, the findings recorded by the Tribunal are justified and could not be considered to be based upon no evidence, there is no justification to interfere with the same. The promoters of the canteen being permanent employees of the service of the Bank, permitted to run the canteen, by merely being in control of the day-to-day affairs of the canteen, the Bank cannot absolve itself of its liabilities when it was really using the canteen management as its instrumentality and agent. The cloak apart, 'the voice definitely is that of Jacobs'. Consequently, we could neither find any error of law or other vitiating circumstances in the judgment of the Division Bench nor any infirmities in the process of reasoning or gross unreasonableness and absurdities in theconclusions arrived at to restore the award, so as to justify and warrant our interference in the matter'.
14. From the reading of the above paragraphs of the judgment of the Hon'ble Supreme Court, it is clear that ultimately even if the canteen is run by the Managing Committee appointed by the Government, that does not by itself make that canteen as an independent unit. The said committee is nothing but an arm of the State. The veil of the Government if pierced would categorically show that it is the Government in the garb of a committee which is running the canteen for its employees as a welfare measure.
15. Therefore, respectfully following the judgments of the Supreme Court I hold that these employees are the employees of the State Government.
16. Recently, a learned Judge of this Court in W.P. Nos. 1831 to 1850 of 2000 in the case of Karnataka Group Insurance Department, has ruled that it is the Government which runs the canteen in the said case. In these circumstances, I have no hesitation in holding that the petitioners have made out a case for interference by this Court. Endorsement issued by the State Government that the petitioners are not eligible for Government pay-scale is not acceptable to me, hence, I quash the same.
17. The next question is with regard to the pay scale that could be provided to these employees. I can draw inspiration from Annexure-O, dated 22-5-1996 a notification issued by the State Government. The present canteen can be equated to the Government Hospitality Organization where the canteen facilities are made available. Accordingly, I direct the Government to implement Annexure-O, dated 22-6-1996 as far as possible to these canteen employees with such revisions as are permissible under law as on today.
18. The second prayer of the petitioners is to declare them as Government Servants. In this regard I deem it proper to modify the relief by issuing a direction to the Government to regularize the services of the petitioners in the following manner;
Government is directed to regularize the services of such of those petitioners who have put in ten years of service subject to the Government satisfaction of the qualification if any for the post held by them and keeping in view the long services rendered by them.
It is declared that the petitioners are the employees of the Government and are entitled for pay parity as per Annexure-O with revision from time to time.
The petitioners have approached this Court in the year 1996 and the petition is heard and disposed of in the year 2000. Petitioners have been provided some increase in the wages from time to time. In these circumstances, I deem it proper that the petitioners are not to be given any arrears for the past period and the direction is to be with effect from 1-1-2000 and not for the earlier period. The arrears from 1-1-2000 is to be made available to the petitioners within three months from the date of receipt of this order.
Petitioners are also entitled for cost quantified at Rs. 5,000/- payable within one month.
19. It appears that the Government is planning to handover the management to another agency. I make it clear that I am not pronouncing any order with regard to the legality or otherwise of the transfer. I make it clear that with or without transfer the petitioners are entitled for the benefit in terms of the order.
Petitions stand allowed in terms of the above order with cost of Rs. 5,000/-.