tion Civil Nos
5187 89 of 1985 etc
Under Article 32 of the Constitution of India PG NO 592 PS Khera and Mrs Sushrna Suri for the Petitioners
Kuldip Singh Additional Solicitor General CVS Rao Ms A Subhashini Girish Chandra and NSD Behl for the Respondents
The Judgment of the Court was delivered by VENKATARAMIAH J
The question involved in these petitions is whether the workmen who were working in canteens established under section 46 of the hereinafter referred to as the Act  in Ordnance Equipment Factory Kanpur Central Ordnance Depot Kanpur and Air Force Station Kanpur are entitled to claim the period of service in such canteens prior to 22
10 1980 as part of the qualifying service for claiming pension
The three industrial establishments referred to above namely Ordnance Equipment Factory Central Ordnance Depot and Air Force Station Kanpur are defence establishment forming part of the Defence Department of the Union of lndia
By the Order No 18l80DJCM dated the 25th July 1981 sanction was accorded by the President of India to treat all employees of canteens established in Defence Industrial Installations under section 46 of the Act as Government employees with immediate effect
By an amendment the said Government Order was given effect from 22
10 1980
The Government Order further provided that it would be applicable to all employees of the statutory canteens irrespective of the type and management of the canteens and till the Government decided otherwise the employees of the said canteens would continue to be governed by the terms and conditions of service laid down in their appointment letters and contracts of employment already subsisting
It was further stated that they would be continued to be paid such employments to which they were entitled then
When some of the employees retired after 22101980 they applied for payment of pension
The Defence Department declined to treat the period of service rendered by them prior to 22
10 1980 in such canteens as part of qualifying service for purposes of pension on the ground that it was only with effect from 22101980 from which date they had become Government employees their qualifying service could be counted
Aggrieved by the rejection of the claim of the workers in those canteens the petitioner s herein have filed these petitions in this Court for declaration that th service rendered by the employees of such canteens prior to 22101980 should be treated as qualifying service for purposes of pension
On behalf of the Union of India counter affidavits were filed resisting the claim of the PG NO 593 petitioners
As the information furnished in the counter affidavits was inadequate for purposes of disposing of the cases the Court by its order dated 2231988 directed the Union of India to file a fuller affidavit giving information about the following matters namely the authority which had the power to appoint workers in such canteens prior to 22
1980 the authority which was paying salary to the workers in the said canteens prior to 22
l9S0 the authority which was controlling such canteens prior to 22
1980 the particulars of the persons who were consumers of the service rendered by the said canteens prior to 22
101980 and other relevant matters in order tn decide the status of the workers in the said canteens prior to 22101980
Thereupon a further affidavit has been filed by Shri N Sivasubramanian Joint Secretary Ordnance Factories to the Government of India Ministry of Defence New Delhi
In the said affidavit it is stated that a prior to being declared as Government servants wef 22 10 1980 the canteens workers in Ordnance Factories were under the canteen managing committees constituted as per provisions of section 46 of the Act b the supervision and control of such canteens were exercised by the Canteen Managing Committee consisting equal number of elected representatives of the factory workers and nominees of the management and the Canteen Managing Committee was the appointing authority of the canteen workers and c that the Canteen Managing Committee was paying the salary to the workers and also controlling the canteens
It was further admitted that by the letter dated 245
1965 of the Ministry of Defence it had been ordered thus The question of subsidising the canteens maintained in Defence Industrial Installations with reference to provisions of Section 46 of the has been under the consideration of Government for some time
After a detailed examination of the matter it has been decided that in order to reduce the cost of meals and snacks served by the canteen to the personal of the Defence Industrial Installation registered as factories and subject to the conditions indicated in the succeeding paras the cost of supervisory and clerical staff and cooks
bearers
helpers vendors etc
employed in these canteen should be reimbursed by the Govt
to the Managing Committee of such canteens The Commandants of the installation will simultaneously ensure that the cost of the mealssnacks provided by these canteens is reduced proportionate to the subsidy received from Govt
for the cost of the staff 
PG NO 594 In order to ensure that uniform standards for employment of staff and payment of salaries as far as possible and the subsidy paid by the Government is related to total number of personnel served by the canteens the number and grades of supervisory clerical and working staff and the scales of pay that should be allowed to them are given in Appendix A  to this office Memorandum for the guidance of the installation Commanders and the Managing Committee
These scales of staff and salaries are the maximum outer limits within which the local Management may engage the staff and workers actually required
Where staff can be engaged on more economical rates it may be employed on such rates
The existing supervisory clerical and working personnel may be brought over to those pay scales to the extent necessary by taking into account their existing emoluments and thereafter annual increments may be allowed after one year from the date of switch over to these scales
Other concessions or allowances of any kind should be allowed to the staff in addition to these consolidated pay scales
Other terms and conditions of service may continue to be regulated by the Managing Committee as here to fore  Reimbursement of the cost of staff will be limited to the scales indicated in the appendix  
These orders are not applicable to the canteens which are at present run by contractors
Such canteens can how ever be switched over to this scheme after the terms of the contract with the contractor have expired or by terminating the contract in accordance with the existing clauses thereof if any
This scheme will also be applicable to new canteens organised by cooperative societies of the staff of Managing Committee appointed under the guidance of the administration in pursuance of section 46 of the in other Defence Industrial Installations which are registered as factories and where canteens have not so far been opened
It is seen from the above letter of the Ministry of Defence that prior to 2451965 there were three kinds of canteens namely i canteens run by contractors ii canteens run by co operative societies of the staff and iii canteens which had been established under section 46 PG NO 595 of the Act
We are not concerned with the first two categories of the canteens but only with the last category of canteens in this case
The above Ministry of Defence letter provides for subsidising the canteens maintained in Defence Industrial Installations under section 45 of the Act
It also gives directions regarding pay scales conditions of service etc
The consumers of the services rendered by such canteens were the factory employees for whose benefit they had been established
It is also not disputed that the building or buildings in which such canteens had been established formed part of the industrial establishment concerned
The Act is applicable both to the factories run by Government and the factories run by other private companies organisations persons etc
It was enacted for the purpose of improving the conditions of the workers in the factories
Section 46 of the Act reads thus 46
Canteens 1 The State Government may make rules requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed a canteen or canteens shall be provided and maintained by the occupier for the use of the workers
2 Without prejudice to the generality of the foregoing power such rules may provide for a the date by which such canteen shall be provided  b the standards in respect of construction accommodation furniture and other equipment of the canteen c the foodstuffs to be served therein and the charges which may be made thereof d the constitution of a managing committee for the canteen and representation of the workers in the management of the canteen  dd the items of expenditure in the running of the canteen which are not to be taken into account in fixing the cost of foodstuff and which shall be borne by the employer e the delegation to the Chief Inspector subject to such conditions as may be prescribed of the power to make rules under clause c
 PG NO 596 Rule 68 of the UP Factories Rules 1950 hereinafter referred to as the Rules  framed under sections 46 and 112 of the Act gives particulars regarding the type of building that should be made available for running a canteen and the manner in which accounts should be maintained in such canteens
It further provides that a canteen managing committee should be established under clause 20 of rule 68 of the Rules
The Managing Committee shall consist of an equal number of persons nominated by the occupier and elected by workers
The number of elected workers shall be in the proportion of 1 for every 11000 workers employed in the factory provided that in no case shall there be more than 5 or less than 2 workers on the Committee
The object of providing for the establishment of Canteen Managing Committee is to see that the employees of the factories have some amount of say in the management of the affairs of the canteens but the obligation to establish a canteen under section 46 of the Act is imposed on the occupier
The expression occupier  of a factory is defined in section 2n of the Act as the person who has ultimate control over the affairs of the factory provided that i in the case of a firm or other association of individuals any one of the individual partners or members thereof shall be deemed to be the occupier ii in the case of a company any one of the directors shall be deemed to be the occupier and iii in the case of a factory owned or controlled by the Central Government or and State Government or any local authority the person or persons appointed to manage the affairs of the factory by the Central Government the State Government or the local authority as the case may be shall be deemed to be the occupier
Under clause iii of section 2n of the Act in the case of a factory owned or controlled by the Central Government the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the occupier
The person so appointed to manage the affairs of the factory of that Central Government is under an obligation to comply with section 36 of the Act by establishing a canteen for the benefit of workers
the Canteen Managing Committee as stated above has to be established under rule 66 of the Rules to manage the affairs of the canteen
The functions of the Canteen Management Committee are merely advisory
It is appointed by the Manager appointed section 7 of the Act and the Manager is required to consult the Canteen Managing Committee from time to time as to the quality and quantity of foodstuff served in the canteen that arrangement of the menus times of meals in the canteen etc
The food
drink and other items served in the canteen are required to be sold on no profit  basis and the prices charged are subject to the approval of the Managing Committee
The accounts pertaining to a canteen in a Government factory may be audited by its departmental Accounts Officers
PG NO 597 The building for the canteen has to be provided by the occupier
Under sub rule 13 of rule 68 of the rules there shall be provided and maintained sufficient utensils crockery cutlery furniture and any other equipment necessary for the efficient running of the canteen
Suitable clean clothes for the employees serving in the canteen shall also be provided and maintained
Thus the basic requirements of the canteen such as buildings utensils crockery cultery furniture etc should be supplied by the occupier
Under the Ministry of Defence letter dated 2451965 the prices of food drink and articles supplies for the canteens are to be subsidised
A canteen is an integral part of the Defence establishment belonging to the Union of India
There cannot be a canteen without sufficient number of workers working in the canteen
The have to be appointed by the occupier
Otherwise he would not be full complying with section 46 of the Act
The Managing Committee cannot be the employer of those workmen in the true sense of the term
The Managing Committee constituted under section 46 of the Act which is not an incorporated body and whose financial position is uncertain cannot be considered to be the employer who h as to bear the legal responsibilities under the several labour laws in face in India
We may however add that in the case of a canteen run b a contractor or a co operative society or some other body the position may be different
But even then there has to be a Managing Committee if such a canteen is treated as a canteen established for purposes of satisfying the requirements of section 46 of the Act
Even in this case the contractor or the co operative society or some other body will be the employer but no the Managing Committee
In this situation it is difficult to hold that the employees in canteens established under section 46 off the Act would not be employees of the occupier even though for purposes of management a Canteen Managing Committee whose functions are advisory as pointed out above has to be constituted under the Rules
It is also not shown that on the workers in the canteens becoming the Government employees on 2210
1980 they were paid by the previous management named the Canteen Managing Committees consituted under rule 68 of the Rules any compensation in lieu of the services rendered by them prior to 22101980
We find it therefor difficult to hold that the employees working in such canteens were not employees of the factories in which the canteen had been established
If they are employees of the factories in which the canteen is established
the service rendered by them in these factories should be counted as part of the qualifying service for pension
Hence the plea of the Union Government that the service rendered by the workers in canteens PG NO 598 established under section 46 of the Act on and after 22101980 alone can be included in the qualifying service for pension cannot be accepted
The period prior to 22101980 also should be counted for purposes of pension
We therefore direct the Union Government to treat the period during which the workers had served in the canteens established under section 46 of the Act in the Defence establishments at Kanpur with which we are concerned in these cases prior to 22
10 1980 also as part of the qualifying service for purposes of pension
We further direct that the pension payable to those employees who have retired from service on or after 22
1980 shall be recomputed by taking the period of service during which they had worked prior to 22
1480 in such canteens into consideration
Such computation shall be made within six months from today
The arrears of pension payable to those who have retired from service shall be disbursed to them within three months after such computation
The petitions are accordingly allowed
No costs
RSS Petitions allowed


Summary:
The Government by an order dated March 91979 revised the fee scales of certain categories of Staff Artists in Doordarshan with retrospective effect from January 1 1973 on the analogy of the recommendations of the Third Pay Commission made in respect of regular Government servants but the categories of the petitioners were denied the benefit by giving them junior scales
In these writ petitions they assailed the said order as discriminatory and violative of articles 14 and 161 of the constitution
Their case is that the nature of work performed by them is similar to that performed by their counterparts in the Film Division and the qualifications required For appointment to these categories of Staff Artists are also the same as required in the cases of their counterparts in the Film Division
They therefore claimed that they should be declared Government servants and given the same pay scales as given to their respective counterparts in the Film Division of the same Ministry of lnformation and Broadcasting with effect from the respective dates of their appointments
The petitioners  claim was contested by the respondents by contending that the Staff Artists of Doordarshan were not Government servants but were engaged on contract basis that they were not of the same class as the employees of the Film Division and that they were therefore not entitled to the same scales of pay
PG NO 604 PG NO 605 Allowing the writ petitions HELD 1
The Staff Artists of Doordarshan including the petitioners are Government servants
They possess all the criteria of a Government servant
They are holding civil posts under the Government
They are being appointed up to the age of 55 6O years on a time scale like a regular Government servant
Their contract runs till the age of retirement as in regular government service
608E B 606F Union oflndia vs MA Chowdhary AIR 1987 SC l526 applied
21 The petitioners perform the same duties as those performed by their counterparts in the Film Division under the same Ministry of Information and Broadcasting
When two posts under two different wings of the same Ministry are not only identical but also involve the performance of the same nature of duties it would be unreasonable and unjust to discriminate between them in the matter of pay
609D 22 One of the Directive Principles of State Policy as embodied in clause d of article 39 of the Constitution is equal pay for equal work for both men and women
The Directive Principles contained in Part IV of the Constitution though not enforceable by any court are intended to be implemented by the State of its own accord so as to promote the welfare of the people
Article 37 provides inter alia that it shall be the duty of the State to apply these principles in making law
609E F 23 The principle of equal pay for equal work if not given effect to in the case of one set of Government servants holding same or similar posts possessing same qualifications and doing the same kind of work as another set of Government servants it would be discriminatory and violative of articles 14 and 16 of the Constitution609G Such discrimination has been made in respect of the petitioners
They are therefore entitled to same scales of pay as their counterparts in the Film Division609H 6l0A The petitioners to be given the new scales of pay with effect from the first day of the month of the year in which each writ petition was filed except the petitioners in writ Petition Civil No 1756 of 1986 who are to be given such scales of pay With effect from December 11983
They would also be entitled to the substituted scales of pay and consequential benefits
The respondents to disburse to the petitioners the arrear amounts being the difference in the pay scales within four months610B CE F PG NO 606