Punjab National Bank Vs. Punjab National Bank Canteen Workers' Union and Ors. (05.04.2007 - CALHC) - Court Judgment

Excerpt:
- ashim kumar banerjee, j.1. punjab national bank (hereinafter referred to as 'bank'), as a welfare measure, extended canteen facility to its employees. they set up various canteen committees from the members of the staff. those canteen committees were extended free accommodation within the branch for running the canteens. the bank also extended subsidy at a stipulated rate. the canteen committees to run the canteens from time to time engaged various casual employees in their pay roll. those casual employees later on claimed regular employment in bank services which gave rise to present writ petition. in 1995 the canteen workers' union of the bank, the respondent no. 1 filed a writ petition along with its members being 80 in number, inter alia, praying for writ in the nature of mandamus directing the bank to treat them as regular, permanent employees of the bank and extend all consequential benefits. the bank opposed the writ petition by filing affidavit-in-opposition. they denied any relationship with the writ petitioners. according to the bank there did not exist employer-employee relationship which could entitle the writ petitioners to claim regularization in service as well as regular pay scale. it was contended on behalf of the bank that the writ petitioners were engaged by various canteen committees and the bank did not have any say with regard to their employee and/or service condition. it was also contended that the petitioners were engaged by various contractors engaged by the canteen committees to run the canteen. those contractor employees could not claim any benefit and their prayer for regularization did not have any statutory support. the learned single judge allowed the writ petition by rejecting the contention of the bank. the learned single judge by his lordship's judgment and order dated august 22, 2003 allowed the writ petition and directed the bank to regularize the petitioners in service by extending regular pay scale.2. being aggrieved by, and dissatisfied with, the judgment and order of the learned single judge allowing the writ petition being dated august 22, 2003 the bank preferred the instant appeal.3. the appeal was heard by us on the abovementioned dates.4. analysis of the judgment and order of the learned single judge is as follows:(i) the writ petition was moved in 1995 after service upon the bank. the affidavits were exchanged and the writ petition was heard on the above-mentioned dates. hence, at this belated stage the bank was not entitled to raise the plea of alternative remedy available to the writ petitioners under the industrial disputes act.(ii) it would be improper for the court at the belated stage to reject the application after lapse of 8 years on the ground of alternative remedy.(iii) identical benefit was extended to the indian overseas bank canteen employees and such decision of the high court was affirmed by the apex court in the case reported in judgment today, 2000, volume iv, supreme court, page 503. the said decision was followed by his lordship.(iv) the cost of running of the canteen came ultimately from the bank and the bank extended such financial support for the welfare of the employees. the bank had full control of the management of such canteen committees as it would appear from its formation.(v) although there was no statutory obligation the bank volunteered to extend such canteen benefits to its employees and as such they would not be entitled to shirk their responsibility by creating 'an artificial screen' in between real employer and the canteen committees.(vi) his lordship relied on the case of bharat heavy electricals reported in 2003, all india reporters, supreme court weekly, page 3469 wherein apex court held that the gardeners in the bungalows maintained by the appellant therein should be considered to be the employees of the company irrespective of the fact that the gardening was not an integral part of such industry.5. the parties cited the following decisions:(1) 1995 supplementary, volume ii, supreme court cases page 611 parimal chandra raha and ors. v. life insurance corporation of india and ors.(ii) all india reporter, 1996, supreme court, page 1241 employers in relation to the management of reserve bank of india v. their workmen.(iii) 1999, west bengal law reporter (sc), page 441 indian petrochemicals corporation ltd. and anr. v. shramik sena and ors.(iv) all india reporter, 2000, supreme court, page 1508 indian overseas bank v. iob staff canteen workers' union and anr.(v) all india reporter, 2000, supreme court, page 1518 state bank of india and ors. v. state bank of india canteen employees union (bengal circle) and ors.(vi) : (2004)iillj253sc workmen of nilgiri cooperative marketing society ltd. v. state of t.n. and ors.(vii) 2006, volume - i, supreme court cases, page 561 state of karnataka and ors. v. kgsd canteen employees welfare association and ors.(viii) : (2006)iillj722sc secretary, state of karnataka and ors. v. uma devi (3) and ors.(ix) : (2006)iiillj1056sc g.b. pant university v. govind ballav pandey and ors.6. mr. arijit chowdhury, learned counsel appearing in support of the appeal contended that there had been no employer-employee relationship between those canteen employees and the bank which could entitle them to raise an industrial dispute. similarly they did not have any right to approach this court by filing the writ petition for their regularization. he contended that the apex court decision in the case of lic (supra) as well as indian overseas bank (supra) could be well be distinguished as in those case employees earlier approached the industrial tribunal and their service got regularized which got ultimate approval from the apex court. in the instant case the employees straightaway approached this court without approaching the industrial tribunal. hence, their writ petition was not maintainable and the learned judge should have dismissed the same.7. mr. soumen saha, learned counsel appearing for the writ petitioner/respondent on the other hand contended that since the identical benefit was extended to the indian overseas bank canteen employees the writ petitioners being similar circumstanced must be given the identical benefit. mr. saha also contended that the plea of alternative remedy was not available o the appellant as they failed to raise such plea at the initial stage. hence, it would be unjust and unfair for this court to deny the claim of the petitioners on the ground that they should have approached the industrial tribunal.8. from the decisions cited above it would appear that there are diverse decisions having equal force on the identical issue. in some of the cases the apex court extended benefit whereas in some other cases it did not.9. in the case of life insurance corporation (supra) the identical controversy was resolved by the apex court. there also despite having no obligation lic continued to support those canteens through the co-operative society formed by the employees. those canteen employees were also engaged by the contractors. there had been supervisory control of the corporation over the said canteens. considering those aspects the apex court ultimately granted them relief as prayed for herein by the bank employees. on perusal of the judgment in the case of lic (supra) we do not find any dissimilarity on facts. the said decision was followed in the case of indian overseas bank. in the case of indian overseas bank on the identical facts the canteen employees initially approached the industrial tribunal. the reference was contested by the bank on the issue of maintainability as it was contended on behalf of the bank that there had been no master-servant relationship between the canteen employees and the bank. the apex court observed that to find out the existence of master-servant relationship the veil may have to be pierced to get at the realities. the apex court held the reference maintainable and ultimately extended benefit to the canteen employees after following the earlier decisions including the decision in the case of lic (supra).10. in the case of state bank of india another bench of the apex court having equal force however denied to extend relief to the canteen employees of the state bank of india. in the said case lic decision was relied upon. the apex court observed that since the decision of lic (supra) was discussed in the subsequent decision in the case of reserve bank of india and distinguished by the apex court there was no need for further discussion on the said issue. the apex court categorized the canteens as statutory canteens and nonstatutory recognised canteens. the apex court also talked about a third category being non-statutory non-recognised canteens. in the case of state bank of india as per the 4th settlement between all india sbi staff federation and the bank, the bank was to take over canteens fro-n the local implementation committees. the apex court observed that those employees of non-statutory and non-recognised canteens were not governed by any rules of the bank and as such they were not entitled to any relief.11. in the case of reserve bank of india (supra) the apex court held that in absence of any effective or direct control of the bank to supervise and control over the canteens run by the canteen committees those workers could not be said to be the employees of the reserve bank of india.12. mr. chowdhury contended that the decision in the case of lic and indian overseas bank had a distinguishing feature as in those cases industrial tribunal was earlier approached. with due respect to mr. chowdhury such was not the fact in the case of lic. in the case of lic the canteen employees initially approached the apex court under article 32. the apex court directed them to approach the high court and the high court decision was ultimately merged in the apex court decision where the benefit was granted to those employees. while doing so the apex court considered the voluntary act of the lic while running those canteens for the welfare of the employees. identical stand was taken by the apex court in the case of indian overseas bank. such stand was sustained in the case of bharat heavy electric (supra). in reserve bank of india and state bank of india case the apex court considered the peculiar facts and circumstances involved therein.13. in state bank case apex court on perusal of the facts involved therein came to a conclusion that sbi did not have any statutory or otherwise obligation to run those canteens. in the case before us, series of circulars annexed to the pleadings would suggest to the contrary.14. on a sum total of the said decisions it would appear that the control test is as to whether the employer had any say in running those canteens or not. in the instant case the bank volunteered to grant canteen facilities to its employees. they supported making grant of subsidy to the canteen committees set up therefor. bank provided electricity, kerosene and fuel free of costs. the canteen committee was to be run by the employees under the supervision and control of the bank. the bank provided free accommodation to those canteens. these are factors which waived the learned judge to come to a conclusion that the canteens were run by the bank through those canteen committees.15. mr. chowdhury contended that there had been no employer-employee relationship and as such the writ petition was not maintainable. such submission of mr. chowdhury is not tenable in view of the apex court observation in the case of indian overseas bank (supra) where the apex court observed that there could not be any strait-jacket formula to find out the master-servant relationship. if necessary, the veil would have to be pierced to find out who was the real employer. the learned judge on perusal of the facts came to the conclusion that the bank extended canteen facility to its employees. hence, applying the ratio in the case of indian overseas bank (supra) his lordship was right in allowing the writ petition.16. mr. chowdhury relied upon very recent decision of the apex court in the case of state of karnataka v. uma devi (supra). here the apex court deprecated the practice of regularization of the casual employees appointed de hors the service rules. in the said case the earlier decisions of the apex court on the subject issue were all considered and distinguished. on a careful perusal of the decision in the case of uma devi (supra) we do not however find any scope of applicability of the said decision in the instant case. in the said case the apex court considered the issue of various casual and/or temporary employees engaged by the government from time to time either irregularly in vacant posts without following the recruitment process or illegally without having any sanctioned posts for the same. in the instant case those canteen employees were engaged in canteens run by the bank through the canteen committees. this decision, in our view, has no application.17. since there are diverse decisions on the subject issue we intend to follow the decision of the apex court in the case of lic (supra) and indian overseas bank (supra) and relying on the said decisions we affirm the judgment and order of the learned single judge.18. the appeal thus fails and is hereby dismissed.19. there would be no order as to costs.20. urgent xerox certified copy would be given to the parties, if applied for.21. there would be a stay of operation of the order for four (4) weeks from date.tapan mukherjee, j.22. i agree.