Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 563 (CAL)

DWIJENDRA NATH SINGHA v. STATE OP WEST BENGAL

2007-07-26

ASHIM KUMAR BANERJEE, TAPAS KUMAR GIRI

body2007
BANERJEE, J. ( 1 ) THE appellants were the canteen employees working in various canteens in Calcutta University Campus. They prayed for their regularization as University Employees. Initially they moved the learned Single judge in 1994 by filing W. P. No. 1506 of 1994. The learned Single Judge by judgment and order dated July 16, 1997 asked the State to consider the representation of the appellants andlpass a reasoned order on the same. While giving such direction His Lordship considered the fact that the University authorities supervised those canteens through a Centralized Canteen committee appointed for the said purpose. Moreover the University Authorities were providing infrastructure to run those canteens for the welfare of the students. The University Authorities; were also paying those employees paltry sums as salary which they called as 'wage subsidy'. The University Authorities, however expressed their inability to accede to the prayers of the petitioners in absence of appropriate approval of the State Government. Considering such fact His Lordship asked the State to consider the prayer. Accordingly, the state Authorities considered the prayer and rejected the representation by a reasoned order appearing at page 103 to 109 of the Paper Book. The appellants challenged the said reasoned order in the second writ petition being W. P. No. 190 of 2001. The learned Single Judge by judgment and order dated February 21, 2001 appearing at page 110, 2112 of the Paper Book dismissed the said application by holding that the appellants' prayer could be effectively considered by the appropriate authority under Section 10 of the Contract Labour Abolition and Regulation Act 1997 or under the appropriate provisions of Industrial dispute Act, 1947. According to His Lordship, the Writ Court was not the proper forum. ( 2 ) BEING aggrieved by and dissatisfied with the judgment and order of the learned Single Judge, the appellants preferred the instant appeal. ( 3 ) WE heard the contentions of the appellant, the University Authorities as well as the State. Upon analyzing the rival contentions the following facts reveal :- (i) The canteens run at the University campus for the welfare of the students were supervised by a Centralized Canteen Committee appointed by the University Authorities. (ii) The infrastructural facilities being accommodation, electricity etc. were provided by the University Authorities. Utensils and furniture for the canteens were being purchased out of the fund provided by the University. (ii) The infrastructural facilities being accommodation, electricity etc. were provided by the University Authorities. Utensils and furniture for the canteens were being purchased out of the fund provided by the University. (iii) Although contended, the University Authorities could not disclose any document in support of their contention that the appellants were engaged through contractor selected through a regular tender process. (iv) No document pertaining to invitation of tender to run those canteens could be disclosed by the University Authorities. (v) The appellants were being paid by the University Authorities. Prior to filing of the writ petition they were allowed to sign the salary sheet maintained by the University Authority for the regular class-IV staff. However, such system stood discontinued immediately after filing of the writ petition and since then the appellants were being paid by the university Authorities against voucher. University contended that such sum was called as 'wage subsidy'. (vi) The University Authorities could not show any document to support their contention that the canteen employees were paid month by month through contractor. (vii) Price of the articles sold from the said canteens was also fixed with the sanction and approval of the University. (viii) From time to time the Senate arid Syndicate considered the prayer of the appellants sympathetically, however University could not take any effective step in the matter in absence of approval of the State government. ( 4 ) LET us now analyze the reasoned order passed by the State through appropriate authority. Such analysis reveals as follows :- (i) There was no obligation on the part of the University to provide canteen facilities to the students. (ii) Canteens were being run by the contractors selected through tender process. (iii) The appellants were engaged toy contractors and their wages were being paid by the contractors. (iv) The University only provided infrastructural facilities and wage subsidy. (v) Wage subsidy was paid to the contractor and not directly to any canteen employee. (vi) University had no role to play either in employment of the said canteen employees or in payment of their wages. University did not have any control or supervision over the canteen employees. (vii) No master-servant relation existed between the respondents and the canteen employees. (viii) The University was under obligation to maintain mess and/or canteen in the student hostel and hence those employees were regularized. University did not have any control or supervision over the canteen employees. (vii) No master-servant relation existed between the respondents and the canteen employees. (viii) The University was under obligation to maintain mess and/or canteen in the student hostel and hence those employees were regularized. They could not be equated with the canteen employees running the canteens in the campus. ( 5 ) FROM the aforesaid facts and/or analysis of facts it would appear that the University Authorities could not satisfactorily remove the doubt of the court with regard to the engagement of the appellants. In the reasoned order it was observed that they were engaged by the contractors whereas the university authorities miserably failed to disclose documents in support of such contention. The "wage subsidies" were being paid directly to the employees and not through the contractors as erroneously observed by the said reasoned order. It is, however, true that the University did not have any obligation to maintain such canteens. However, for the welfare of the students they volunteered to do so as would appear from the various resolutions of the Senate and Syndicate disclosed herein. From the sequence of the events we are of the view that the canteens were being run by the University through the centralized canteen committee. It is, however, not clear as to how the appellants are being paid salaries over and above the "wage subsidy" provided by the university. It is also not clear as to how the centralized canteen committee is running the canteens. It is the duty of the University to remove the doubts of the Court. They could not do so. On the contrary, we find that the prayers of the appellants were being considered from time to time by the University through the Senate and Syndicate sympathetically. A resolution of the Syndicate in the meeting held on April 16, 1991 being relevant herein is quoted below :- "20. Considered the issue of the problems of the canteens in the different campuses and resolved.- (i) That the amount of subsidy given to each worker be enhanced from Rs. 80,00 to Rs. 120. 00 w. e. f. 1. 4. 91. (ii) That Prof, B, Burman, Prof. A. N. Daw and Prof. Considered the issue of the problems of the canteens in the different campuses and resolved.- (i) That the amount of subsidy given to each worker be enhanced from Rs. 80,00 to Rs. 120. 00 w. e. f. 1. 4. 91. (ii) That Prof, B, Burman, Prof. A. N. Daw and Prof. S. P. Mukherjee be requested to have dialogue with the canteen personnel at different campuses and to submit a report on the state of affairs of the canteens at the two Science College campuses with recommendations to ensure smooth running after a dialogue with the canteen workers and students for further consideration. (iii) That a list of persons to wham subsidy of Rs. 80. 00 is being given, be placed before the Syndicate. " ( 6 ) ON perusal of the resolution quoted (supra) it would appear that "wage subsidies" were paid to each of the workers. Hence, the observation of the State to the extent that "wage subsidy" was being paid through the contractors was absolutely wrong. The University mess employees have already been regularized pursuant to the orders of this Court. The canteen employees are yet to be regularized. In almost an identical situation canteen employees of G. B. Pant University were regularized pursuant to the Apex court decision in the case of G. B. Pant University of Agricultural and technology, Pant Nagar, Nainital v. State of U. P. and Ors. reported in 2000, volume - VII, Supreme Court Cases, Page 109. However, there is one distinctive feature in the said case that it was a residential University and the students were compelled to stay within the campus whereas in the present case the appellants are employed in the canteens in various University campuses where students are coming from outside. In the case of Indian overseas Bank reported in All India Reporter 2000, Supreme Court, Page 1508 the Apex Court considered a similar situation where bank provided all infrastructural facilities to the canteens including furniture, utensils, electricity, cost of fuel, water supply etc. In the said case also the bank avoided the issue of regularization on the ground that there was no statutory obligation on the part of the bank to provide canteen facilities and there was no master servant relationship as those employees were being engaged through a cooperative. Such contention was negated by the Apex Court. In the said case also the bank avoided the issue of regularization on the ground that there was no statutory obligation on the part of the bank to provide canteen facilities and there was no master servant relationship as those employees were being engaged through a cooperative. Such contention was negated by the Apex Court. The Apex Court put emphasis on the fact that in evidence before the Industrial Tribunal it came out that the canteen workers were employed under the Welfare Fund Scheme of the bank and they were eligible for periodical medical check up by the doctors of the bank. These facilities weighed with the Apex Court while granting regularization to those canteen employees. ( 7 ) ALL the Apex Court decisions uptill date on the subject issue were considered by the Division Bench of this Court in the case of Punjab National bank v. P. N. B. Canteen Workers Union reported in 2007, Volume - II, West bengal Law Reporter (Calcutta), Page 245. Paragraphs 14, 15, 16 and 17 being relevant herein are quoted below :-"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 weighed the learned Judge to come to a conclusion that the canteens were run by the Bank through those canteen committees. 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 straight 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. 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. 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 dehors 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. 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. " ( 8 ) RELYING on the aforesaid decisions we are of the view that the learned Judge erroneously observed that the appellants would have to approach the appropriate authority under Section 10 of the Contract Labour Regulation act. His Lordship was also not right in refusing to interfere with the controversy by granting them leave to approach Che Industrial Tribunal under the Industrial disputes Act. It is true that the University did not have any statutory obligation to maintain any canteen. They volunteered to patronize those canteens for the welfare of the students. Hence, they are not entitled to discharge their obligation towards the appellants only by paying them poultry sums every month under the guise of "wage subsidy" after utilizing their services regularly. It is true that the University did not have any statutory obligation to maintain any canteen. They volunteered to patronize those canteens for the welfare of the students. Hence, they are not entitled to discharge their obligation towards the appellants only by paying them poultry sums every month under the guise of "wage subsidy" after utilizing their services regularly. ( 9 ) THE appeal thus succeeds and is allowed. Order under appeal is quashed and set aside. The writ petition is allowed. The reasoned order appearing at page 103 to 109 of the Paper Book is quashed and set aside. The State Government is directed to consider the issue afresh in the light of the observations made by us hereim The entire consideration must be made and a reasoned order must be passed by the State Authority through the Chief secretary within a period of four weeks from the date of communication of this order. If the Chief Secretary so thinks fit he may give personal hearing to the authorized representative of the university as well as the appellants. ( 10 ) THE Appeal is disposed of accordingly without any order as to costs.