Achintya Kumar Mondal v. Calcutta Port Trust — 1991 DIGILAW 472 (CAL)

JUDGMENT Banerjee. J : To ascertain the relationship between employer and employee, the earlier approach of the law courts was the control test. The modern approach, however, is slightly different and the law as laid down by the Supreme Court (Workmen of the Food Corporation of India v. Food Corporation of India: AIR 1985 SC 673) in no uncertain terms laid down that to establish employer employee relationship, two essential features ought to be considered, viz., (a) a person is to be engaged by the employer to render service in the industry; and (b) the employer agrees to pay him in cash or kind. 2. In a very recent judgement of the Supreme Court in the case of Griha Kalyan Kendra Worker's Union v. Union of India & Ors. (1991 : 62 (FLR) 337), the Supreme Court laid down that unless a person is a recruiter by an authority on the same terms and conditions as applicable to its regular employees, the person cannot be treated as an employee of the organisation. The Supreme Court went on to observe that equal pay for equal work are applicable only in case of similarly situated employee engaged in similar and comparable work putting in comparable hours of work in a comparable employment. 3. Turning now on to the matter under consideration, it appears that this appeal is directed against the order of the learned single Judge wherein the learned Judge has been pleased to dismiss the writ application of the canteen employees of the non-statutory canteens maintained both at the Port of Calcutta and at Haldia. Incidentally it is to be recorded that the Calcutta Port Trust as a matter of fact maintains certain statutory canteens at both the places, viz, Calcutta and Haldia and in addition thereto these non-statutory canteens have been functioning since long. The principal grievance of the petitioners in the writ petition is that whereas the statutory canteen employees have duly been given recognition of the port employees, the non-statutory canteen employees-though given certain advantages but the same are not in a comparable state between the statutory and the non-statutory canteen employees. Admittedly, there is a Specific pay scale for the non-statutory canteen employees which have also been revised by the Chairman by its letter dated 15th June, 1985 as also by another letter dated 24th August, 1985. Admittedly, there is a Specific pay scale for the non-statutory canteen employees which have also been revised by the Chairman by its letter dated 15th June, 1985 as also by another letter dated 24th August, 1985. The Calcutta Port Trust authority allowed certain benefits to the employees of the non-statutory canteens at par with the comparable categories of employees of the Calcutta Port Trust, viz, scale of pay, house rent allowance, gratuity, leave and also fixed dearness allowance, special dearness allowance at the rate of Rs. 110/- per head per month, medical allowance of Rs. 15/- per head per month, supply of uniform, Provident Fund, outdoor hospital facilities, free tiffin, soap, etc. The grievance of the employees of the non-statutory canteens are, however, that they are not getting equal facilities like variable dearness allowance, hospital facilities, injury leave on duty, medical expenses children education allowance L.T.C, leave encashment, pension, Provident Fund interest as per Government rate, interim relief as has been granted to the employees of the Calcutta Port Trust, welfare loan, rate of overtime allowance which are enjoyed by the employees of the statutory canteens. 4. It is this disparity which has prompted the writ petitioners to move this Court under Article 226 of the Constitution. The learned Judge while dealing with the matter, however, observed that these non-statutory canteens and refreshment rooms have been started with the prior approval and sanction of the Board of Trustees of the Calcutta Port Trust, neither any rule or regulation or even any administrative instruction has been issued by the Board of Trustees for the Port of Calcutta providing for such open canteens. The learned Judge observed that if some local officers in a meeting decide to start a canteen with some financial assistance from the administration, the question of treating the employees of the canteen as such does not and cannot arise ; more so, by reason of the fact that the writ petitioners have frankly admitted that they have been appointed by the Managing Committee and their salaries are being paid by the Managing Committee and in that view of the matter dismissed the writ petition of the employees of the canteen. 5. 5. This appeal is directed against the order of the learned single Judge, inter alia, contending that as a matter of fact, the tests laid down by the Supreme Court as noted above, are fully complied with in the facts and circumstances of the matter in issue. The question of not being appointed by the Board of Trustees or without any appointment letter does not and cannot arise since, in the event of there being any appointment letter, this writ petition would not have been moved before the Court and there would not have been any difficulty experienced of whatsoever nature, but the fact remains that the tests laid down by the Supreme Court, viz., the financial control ought to be the guiding factor in the matter of determination of the relationship between an employer and employee so far as the non-statutory canteen employees are concerned. 6. Admittedly, these non-statutory canteens are functioning for quite some time both in the port at Calcutta as also at Haldia. Section 46 of the Factories Act provides an obligation on the part of the Port Authorities to open canteens in pursuance whereof the Port Trust in fact, did open canteen for the members of its staff. Obviously, these statutory canteens are not sufficient enough-otherwise there would not have been functioning another 16 non-statutory canteens at the Port of Calcutta and 6 non-statutory canteens functioning at Haldia. If the statutory canteens were sufficient, these would have been non est and there cannot be any manner of doubt in regard thereto. It, therefore, appears that these 16 non-statutory canteens at the Port of Calcutta and 6 non-statutory canteens in Haldia they are supplementing the need of the employees and are providing services required to be rendered to the members of the staff under a statute so far as the employer, viz., the Port Trust Authority is concerned. 7. Another redeeming feature is the payment of subsidy for these canteens without which these canteens could not be able to function and in that view of the matter, the ultimate financial control in the matter of running of the canteens lies with the Port Trust and this subsidy allows the canteens to function in the manner as is expected. There is, therefore, a direct control of the Port Trust Authorities in the matter of running of the canteens. There is, therefore, a direct control of the Port Trust Authorities in the matter of running of the canteens. As noted above, the pay scale has been revised by the Chairman himself and they are entitled to get the fixed dearness allowance along with gratuity, leave, house rent and the same is at par with the comparable categories of the employees of the Calcutta Port Trust. There is no dispute in regard to the factum of disciplinary action by the Port administration for any lapse in performance of the duties and responsibilities in so far as the employees of the non-statutory canteens are concerned. 8. To provide canteen facility is a welfare measure for the benefit of the members of the staff. As a matter of fact, the Central Government has also taken up the matter in right earnest in order to evolve a procedure so as to allow this welfare measure to the concerned employees. Merely because of the fact that the appointment is being effected by a Committee of Management being the employees of the Port Trust, that by itself cannot, in our view, take away the right to be treated at par and come within the ambit of the doctrine of equal pay for equal work. The doctrine of equality as above, is not a meaningless jargon, but has a definite legal connection. The statutory canteens employees are having the benefit of certain privileges which the other employees of the non-statutory canteens are being deprived of. Can it be termed to be a fair and a reasonable attitude of the Port Authorities to lend a deaf ear to the cries of the employees to give him some other benefits comparable to that of their counterparts in statutory canteens? In our view, the answer cannot but be in the negative. It will be grossly unfair to treat the employees of the non-statutory canteens dissimilar with that of their counterpart in the statutory canteens when in fact they are discharging the duties and responsibilities of a statutory canteen. These canteens are subsisting as a parallel organisation so that the employees of the Port Trust of Calcutta do not have to face the difficulty or experience any problem in the matter of obtaining food and beverage during the office hours They are serving to the need of the people along with the statutory canteens. These canteens are subsisting as a parallel organisation so that the employees of the Port Trust of Calcutta do not have to face the difficulty or experience any problem in the matter of obtaining food and beverage during the office hours They are serving to the need of the people along with the statutory canteens. In our view, it would be grossly unfair and arbitrary to treat similarly circumstanced people differently. 9. In this context the observations of the Supreme Court in the case of Hussain Bhai v. Alath Factory Tezhilali Union & Others ( AIR 1978 SC. 1410 ) seems to be very pertinent. The Supreme Court in paragraph 5 of the Report observed :– “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, half• hidden 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 Arts. 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of law and not be misled by the moya of legal appearances.” 10. It thus, appears that law is well settled that the presence of intermediate contractors with whom the employees or the workers have immediate or direct relationship is of no consequence. If the veil is lifted or looking at the conspectus of factors governing employment, it leaves no manner of doubt that the Calcutta Port Trust is the real employer and not the contractor. 11. If the veil is lifted or looking at the conspectus of factors governing employment, it leaves no manner of doubt that the Calcutta Port Trust is the real employer and not the contractor. 11. While it is true that this Court bas delivered judgement this morning In regard to the canteen employees of Life Insurance Corporation (Life Insurance Corporation of India and Others v. Parimal Chandra Raha and Others; Appeal No. 656 of 1989 arising out of Matter No. 2303 of 1986) wherein the learned single Judge's order allowing the writ petitioner's application was set aside and the writ petition was dismissed but the decision is clearly distinguishable on facts and for the reasons stated therein. The observation of this Court in the case of Life Insurance Corporation of India (supra) ought to be noticed at this juncture. “Coming back to the ratio decidandi in Hussainbhai’s case (supra) it is, therefore, seen that the statutory Corporation nowhere envisages the provision of canteen facility for its staff members, though, however, all other details and benefits to be conferred on to the employees are specifically mentioned in the staff regulation. It is, therefore, clear that apparently canteen facility does not form an integral part of the service of the employees of the Corporation. Let us, therefore, now lift the veil and see for ourselves whether on lifting such veil some such situation is found that the canteen facilities can be termed the integral part of the members of the staff or that the services offered by the canteen employees are for the business of the Corporation. Considering the statement and object of the Act as noted above, that it is for the purpose of nationalisation of the insurance business of life policies, question of providing canteen facility in the matter of discharge of its business, in our view, does not and cannot arise. At this juncture to recapitulating the facts as noted above to the extent that the Corporation has only provided space and certain chairs and tables and that the Corporation has reserved the right of asking the contractor for the canteen to temporarily suspend an employee having contagious disease that by itself according to us, would not entitle this Court to come to a conclusion that services rendered by the canteen employees are the services for the business of the Corporation. It has no co-relation of whatsoever nature with the business of the Corporation. If the members of the staff form a co-operative and that particular cooperative for the benefit of its members to obtain cheap meal or meals at a reduced rate request the Corporation for giving a space and the Corporation thereunder agrees to provide such a space, in our view, by no stretch it can be stated that the services rendered by the canteen employees are for the business of the Corporation. In that view of the matter, with very great respect to the learned Judge, we are unable to concur ourselves with the observations of the learned Judge that the judgement of the Supreme Court in the Hussainbhai's case (supra) has its full application in the facts and circumstances of the matter under consideration. In that view of the matter we are also unable to accept the contention of Mr. Sengupta that the decision of the Supreme Court as noted above ought to be relied upon by this Court.” 12. This Court does not, however, find the same compelling reasons in the facts and circumstances of the matter under consideration. 13. In that view of the matter, the order of the learned trial Judge is set aside and quashed. The writ petition is allowed. There shall, therefore, be an order upon the respondents to treat the petitioners, i.e. the employee of the non-statutory canteens, tiffin clubs and restaurants as the employees of the respondent and these employees be paid at the same rate at the same basis inclusive of allowances and other emoluments and benefits and treat them at par with the employees of the statutory canteens. The appeal is disposed of accordingly. Each party to pay and bear its own costs. Prayer for stay is refused. 14. Since the issue is of much importance and involves substantial question of law to be determined by the Supreme Court, Certificate is granted to move before the Supreme Court. All interim orders stand vacated. Sunil Kumar Guin J: I agree. Order impugned quashed; writ application allowed; direction given to treat the petitioners at par with employees of the statutory canteens; leave granted to appeal to the Supreme Court.