JUDGMENT (1.) THE facts of this case as found by the Tribunal are as follows : "the Government of West Bengal by its order dated 29th November, 1976 referred an industrial dispute between the petitioner company and their workmen represented by commercial Employees, Union under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act) for adjudication on the following issue : bonus for the Canteen employees for the year ending 31st October, 1973 (2.) THERE is a canteen situated within the factory premises of the company and it started functioning since 21st of October 1970 in pursuance of the agreement of the year 1969. The furniture kept in the canteen hall as also the utensils used for the canteen have been provided by the company. There is a Managing Committee called Canteen Managing Committee for the purpose of supervision and control over the affairs of the canteen. The Canteen Managing Committee consists of six members three as the company's representatives and three as workmen's representatives. The committee is headed by its Chairman who happens to be the Works Manager of the company. Every year or at an interval of two, or three years agreements are entered into between the Coats of India Ltd., Canteen Managing Committee on the one hand and the respective caterers. At the relevant time the Canteen, Managing Committee used to pay to the contractor Rs. 2.95 per meal out of which Rs. 0.40 was paid by the staff, and the balance was subsidized by the company. The employees get coupons in advance and the amount is adjusted with the salary for the following month according to the list furnished by the committee to the Company. The caterer is responsible for the supply of meals, snacks and tea to the factory employees. Whatever money is spent by the company for canteen, is entered into the books of account of the Company. After the contractor submits his bills, the Managing Committee forwards the same to the company with its recommendation and the Company pays the bills to the committee for payment to the contractor. The strength of the canteen staff varies between 11 and 15. The Tribunal also found that the canteen employees were not directly appointed by the Company nor had they ever moved the company for leave or other benefits enjoyed by the regular and direct employees of the company. The strength of the canteen staff varies between 11 and 15. The Tribunal also found that the canteen employees were not directly appointed by the Company nor had they ever moved the company for leave or other benefits enjoyed by the regular and direct employees of the company. The Tribunal also found that the canteen employees got their wages from the respective contractors after signing the registers and they sign the Attendance-cum-Pay Register maintained by the caterers. The point that arose for consideration was whether the Canteen employees are the employees of the Company or they are the employees of the individual contractors with whom the Canteen Managing committee had entered into agreements from time to time. The Tribunal came to the conclusion that the Canteen employees must be held to be the employees of the Company. Being aggrieved by the same, the petitioner company has moved this application and obtained a rule and injunction. (3.) MR. Ginwalla, appearing in support of the Rule has raised similar contentions as raised on behalf of the Company before the tribunal. He has contended firstly that as the Tribunal has found that about 240 employees were employed in the factory of the petitioner, accordingly the Factory Rules have no application and accordingly the question of obligation on the part of the petitioner company to maintain a canteen under the Factories Act cannot and does notaries. The main submission of Mr. Ginwalla is that Canteen employees were in feet employed by the employer and not by the petitioner Company and, therefore, they cannot claim to be the employees of the company. (4.) ON behalf of the respondent Mr. Ghose has repeated the submissions made by mm before the Tribunal and has contended that the test is not to see as to whether the employees are engaged by the company or somebody else but whether they are employed in the industry in question. If they are employed in the industry, then irrespective of the question as to whether they are appointed by the Company or an independent contractor, they will be employees of the company within the meaning of the said act. In this connection the learned Advocates have relied on the following decisions: "bengal waterproof works vs. State of West Bengal (1970) L. I. C p. 71 ; AIR 1972 SC 1598 ; Sara spur Mills Co. In this connection the learned Advocates have relied on the following decisions: "bengal waterproof works vs. State of West Bengal (1970) L. I. C p. 71 ; AIR 1972 SC 1598 ; Sara spur Mills Co. vs. Ramanlal Chimanlal, AIR 1973 SC 2297 : hussanbhai vs. Afath Factory, AIR 1978 SC 1410 ; J. K. Cotton and Spinning mills vs. ' Labour Appellate Tribunal, (1963) 2 Labour Law Journal 236 and (1978) 37 Factory Law Reports 128. " At the outset I make one point clear. In my opinion, the mere fact that because less than 250 employees were employed at the relevant time and accordingly section 46 of the Factories Act would not be (attracted on its own, is not material at all in the facts of this case. There was a settlement in this case in which the Management for the first time agreed to provide a canteen to its workmen in terms of the provisions of the Factories Act. The relevant clause of the said settlement provides as follows:- "canteen : As and when the company's establishment in Calcutta is shifted in totality to the new factory and office premises at Taratolla Road now under construction essential basic facilities for a canteen will be provided by the company and the allowance of 80 paisa per workmen per day referred to above as Tiffin allowance shall merge in such facility. The canteen shall be operated by a canteen managing committee formed in terms of the Factories rules. " It is clear that there is a canteen and this canteen is to be run in accordance with the Factories Rules., Accordingly, there is an obligation under the settlement to maintain such canteen even if section 46 by itself may hot be attracted. (5.) THE main question is whether canteen in employees are workmen within the meaning of the Act or not. In my opinion, this point now stands concluded by the decision in the case of Sara spur Mills Co. Ltd. v. Ramanlal Chimanlal (supra), A, similar contention was raised therein. The supreme Court held that this stood concluded by a decision reported in AIR 1972 SC 1598 . (Ahmedabad etc Mfg. Co. v. Ramtahai)Both in Sara spur Mills Co,'s case and in air 1972 SC 1598 the persons concerned were employed by a contractor. The Supreme Court held that they were persons employed in the industry. The supreme Court held that this stood concluded by a decision reported in AIR 1972 SC 1598 . (Ahmedabad etc Mfg. Co. v. Ramtahai)Both in Sara spur Mills Co,'s case and in air 1972 SC 1598 the persons concerned were employed by a contractor. The Supreme Court held that they were persons employed in the industry. In Saraspur's case the Supreme Court pointed out that the cases referred to therein were treated as an authority for the proposition that an employee engaged in a work or, operation which is incidentally connected with the main, industry was a workman if other requirements of the statute were satisfied and that the mails in that case were workers. The Supreme court further pointed, out that the gardens in which the Mali's were engaged were a kind of amenity supplied by the mills to its officers and on this reasoning the mails were held to be engaged in operation incidentally connected with the main industry carried out by the employer. Accordingly the Supreme Court held that as It was the duty of the company to run a canteen for the use of its employees, they were the employees of the company. As already stated, whether section 46 in terms applies or not, by virtue of the settlement, it was an obligation on the part of the company in the present case to maintain a canteen and this has to be managed under the Factories Rules. For providing a canteen, a kind of amenity was supplied by the company ; and the canteen employees must be deemed to be engaged in an operation incidentally connected with the industry carried out by the company. In my opinion, in view of the decisions of the Supreme Court, the mere fact that the persons concerned are actually appointed by an independent employee of the company is not relevant to the question as to whether they are employed in an industry. Mere existence of an independent contractor is not the end of the matter; This is also made, clear by a subsequent decision of the Supreme Court in the case of Hussainbhai v. The Alath factory Tezilali Union and others (supra). In this context I may refer to a decision of the Supreme Court also in the case of J. K. Cotton and Spinning Mills Co. Ltd v. Labour Appellate Tribunal of India and others (supra). In this context I may refer to a decision of the Supreme Court also in the case of J. K. Cotton and Spinning Mills Co. Ltd v. Labour Appellate Tribunal of India and others (supra). The expression "employed in any industry" in section 2 (s) of the said act was discussed and it was held that such expression would take in employees who are employed in connection with operation incidental to the main industry. It was held that an employee who is engaged in any work or operation which is incidentally connected with the main industry of the employer would be workman provided the other requirements of section 2 (s) are satisfied. It was pointed out that in the modern world industrial operations have become complex and complicated and for the efficient and successful functioning of any industry, several incidental operations are called in aid and it is the totality of all these operations that ultimately constitutes the industry as a whole. However, I must point out that in that particular case the company was paying the salaries of the Mails and the question was whether the mails were employed in the industry. (6.) STRONG reliance was placed by Mr. Ginwalla on a decision of this court in the case of Bengal Waterproof Works v. State of West Bengal reported in (1970) 1 labour and Industrial Cases page 71. There it was held that the liability of the company under the Factories Act was only to set up and maintain a canteen, so that workers might have the benefits of its existence. The terms and conditions of service of canteen staff do not come under that liability. It was found that the staff of the canteen were appointed by the managing Committee of the Canteen which was a separate body set up under statutory provisions. Accordingly it was held that there was no relationship of employer and employee between the canteen employees and the company and it was held that since they are employed not under the company but under the Canteen Management, it was separately managed. In view of the decisions of the supreme Court referred to above, this calcutta decision cannot be treated as good law. In that view of the matter, I reject the contention of the petitioner. Accordingly, the application is dismissed Rule is discharged. Interim orders, if any, are vacated. (7.) MR. In view of the decisions of the supreme Court referred to above, this calcutta decision cannot be treated as good law. In that view of the matter, I reject the contention of the petitioner. Accordingly, the application is dismissed Rule is discharged. Interim orders, if any, are vacated. (7.) MR. Ginwalla has prayed for stay of operation of the order. In this matter the reference was made in 1976 wherein the Tribunal had gone into the question of preliminary point only and nothing else. Four years have passed, only one of which is in this High Court. The Tribunal has merely directed, after disposing of the preliminary points, that the case be heard on merits. In my opinion, the hearing would take sometime and the Award of the tribunal would take some time. It is not proper that I should grant any general stay at this stage. Award, if any, made would not be published for a period of eight weeks hence. There will be no order as to costs. Blue discharged. No costs.