SBCWP NO.6119/97. SBCWP NO.4502/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION No.6119/1997. Malviya National Institute of Technology, Jaipur (Deemed University) Vs. Malviya Regional Engineering College Mess Employees Union, Jaipur & Anr. 2) S.B. CIVIL WRIT PETITION No.4502/1997. Kailash Chandra Napit & Ors. Vs. Judge, Industrial Tribunal, Rajasthan, Jaipur & Anr. Date of Order:- February 15, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sanjay Pareek for the petitioner. Shri Virendra Lodha for the respondents. (in SBCWP No.6119/97). Shri Virendra Lodha for the petitioners. Shri Sanjay Pareek for the respondents. (in SBCWP No.4502/97). ***** Reportable BY THE COURT:- These two writ petitions are directed SBCWP NO.6119/97. SBCWP NO.4502/97. 2 against the same award dated 4/4/1997 passed by the Industrial Tribunal, Jaipur therefore, they were clubbed together, heard together and are being decided by this common judgment. 2) First writ petition being SBCWP No.6119/1997 has been filed by Malviya National Institute of Technology, Jaipur (for short, 'MNIT') (formerly known as “Malviya Regional Engineering College”), a deemed university, challenging the award to the extent learned Tribunal held the members of respondent-Union as its employees and directed the petitioner to pay to such of them, who have completed more than two years of service minimum salary of the post on which they were working w.e.f. 1/1/197 on the pattern on which the regular salary is paid to employees of other State Enterprises. 3) Second writ petition being SBCWP No.4502/1997 has been filed by as many as 29 employees with the prayer that aforesaid direction of the learned Tribunal be suitably modified so as to require the MNIT Management to pay to them regular salary immediately on completion of two years of service and such of the workmen, who were discharging duties of the SBCWP NO.6119/97. SBCWP NO.4502/97. 3 post of Store Keepers be paid regular pay scale of the post of LDC and such of them, who were discharging duties of Cook and Waiter, be paid minimum salary in the regular pay scale soon after completion of two years. 4) Shri Sanjay Pareek, learned counsel for petitioner argued that the workmen in question were in fact not employees of the MNIT Management because they do not have direct control and supervision over such workmen. Rather, direct control and supervision over such workmen is of Mess Committee and payment of their salary is also made as per the directions of the Committee out of the funds collected from the Hostel inmates. It is submitted that students residing in the hostel are being provided meal as per the arrangement made by the Mess Committee which consists of ten persons viz. Warden, Mess Assistant and eight students. The members of the association/ workmen in question are, therefore, not employees of the petitioner and there is no relationship of master and servant between the MNIT and the Mess Employees. Hostel Warden, Mess Assistant and Hostel Residents who are employees of the MNIT SBCWP NO.6119/97. SBCWP NO.4502/97. 4 merely contribute to the Mess Committee and the MNIT merely receives mess charges from the students as a Trustee and disburse the same as per the directions of the Mess Committee to its employees. The workmen in question therefore are not regular employees of the MNIT. Their employment cannot be treated similar to the regular staff of MNIT. It is further argued that MNIT does not fix the wages of the employees nor does it engage them. To facilitate the work of Mess Assistant, a Mess Assistant has been provided by the MNIT. Otherwise, employees of the Mess Committee are employees of the Mess Committee and not of the MNIT Management. The Mess Committee has engaged them on consolidated salary basis which employment they have accepted. MNIT has nothing to do with the terms and conditions of their service. Learned counsel for petitioner submitted that the finding recorded by the Tribunal that the management has failed to point out as to under which rule the Mess Committee has been constituted and therefore it may be assumed that the workmen were the employees of MNIT, is wholly perverse and erroneous. Burden to prove that they were SBCWP NO.6119/97. SBCWP NO.4502/97. 5 employees of the MNIT was on the workmen themselves and not on the MNIT. Mere fact that Warden is Chairman of the Mess Committee with Mess Assistant being provided by MNIT does not prove that the actual control and supervision of the employees of the Mess Committee rests with the MNIT Management. While Warden and Mess Assistant may be employees of the MNIT Management, this does not necessarily mean that the employees of the Mess Committee would by itself become employees of the MNIT Management. 5) Shri Sanjay Pareek, learned counsel for petitioner further argued that finding recorded by the Industrial Tribunal that since the Registrar has the authority to appoint Junior Accountant and on posts there below under the rules governing service conditions of the employees of the MNIT, it should be assumed that the Registrar is the appointing authority and not the Mess Committee, is also wholly perverse and unfounded. As to who would be competent authority cannot be a matter of interference unless proved by evidence. Respondents were appointed by the Mess Committee. In order to bring home his point. Shri Sanjay Pareek, SBCWP NO.6119/97. SBCWP NO.4502/97. 6 learned counsel for petitioner referred to various documents filed with SBCWP No.6119/1997 and collectively marked as Annexure-3, one was of the hostel receipt showing deposit of the mess charges and another was muster roll of the July 1986 showing the payment to the workmen after verification by the authorities. The MNIT Management also produced documents in rebuttal relating to the constitution of the mess committee and appointment of employees and marked as Exh.M-1, M-1A to M-1G dated 12/11/1980 to 29/3/1988 which are collectively filed at Annexure-3. These documents were not correctly appreciated by the Tribunal. It would be evident from these documents that decision to engage the employees and to determine their salary or grant increments etc. were taken by the Mess Committee and not by the MNIT Management. 6) Shri Sanjay Pareek, learned counsel for petitioner further argued that merely because MNIT provided building of hostel, furniture, gas cylinder etc., does not mean that the members of the union/workmen in question, can be treated as their employee. This also does not give rise to the assumption that the control and supervision SBCWP NO.6119/97. SBCWP NO.4502/97. 7 over the mess employees is exercised by the Registrar of MNIT Management. Workmen also failed to prove that they were engaged by the Registrar of MNIT Management. The entire award proceeds on surmises and conjectures. Mess committee has a separate entity than the MNIT Management which is elected by the students and officers of MNIT Management are there only with a view to assisting them. If the amount deposited by the students towards contribution of the mess charges is retained by the MNIT Management as a Trustee, that would not make it employer of the workmen. MNIT Management has neither financial nor administrative control over the mess committee either directly or indirectly. In support of his arguments, learned counsel for petitioner has placed reliance on the judgments of Apex court in Canteen Mazdoor Sabha Vs. Metallurgical and Engineering Consultants (India) Pvt. : (2007) 7 SCC 710, State of Karnataka Vs. KGSD Canteen Employees : (2006) 1 SCC 567 and Haldia Refinery Canteen Employees Vs. Indian Oil Corporation : (2005) 5 SCC 51. SBCWP NO.6119/97. SBCWP NO.4502/97. 8 7) Shri Virendra Lodha, learned counsel for respondents submitted that even from the documents which MNIT Management produced before the Industrial Tribunal it is clearly proved that control and supervision of the workmen was with the MNIT Management and its employees. Learned counsel in this connection referred to the first document filed by the petitioner at Annexure-3 to show that Mess Committee consisted of Dr.Vasudev Convener, Dr.Ranjeet Singh Mess Warden, Dr.R.P. Kashyap Mess Warden, Dr.R.K. Yadav Mess Warden, Dr.O.P. Kachchawa Mess Warden, were all teaching faculty working with the MNIT Management. Shri K.B. Pareek and Shri O.P. Sharma respectively, described as Manager Hostel and Mess Supervisor were also employees of the MNIT Management. Moreover, five Mess Attendants namely; Shri Nalin Gupta, Shri Ummed Singh, Shri Brijendra Singh, Shri R.C. Kalra and Shri Paritosh Sharma were all employees of the MNIT Management working on the post of UDC with them. Referring to this document produced by petitioner at Annexure-3, learned counsel further submitted that in this document, Warden, Chief Warden, Hostel Manager, Mess Supervisor SBCWP NO.6119/97. SBCWP NO.4502/97. 9 and Mess Attendants have been exercising their control and supervision. He contended that this was more than sufficient evidence to sustain the finding of the learned Tribunal of relationship of master and servant. Learned counsel submitted that the Industrial Tribunal has rightly held that MNIT failed to produce any rule or regulation under which, the mess committee was constituted or it has independent entity. Learned counsel submitted that Industrial Tribunal having held the workmen to be employees of the MNIT was wholly justified in directing payment of salary to them w.e.f. 1/1/1997 to pay minimum salary in the regular pay scale to the workmen whenever they completed two years of service with the MNIT Management. 8) Shri Virendra Lodha, learned counsel for the petitioners argued that in the judgments cited by the learned counsel for petitioner, the employees in question were engaged in statutory or non statutory Canteens being run by the department of the government for welfare of its employees. Here is the case where employees are engaged by the Management for preparing meal, breakfast etc. for the students. Method devised SBCWP NO.6119/97. SBCWP NO.4502/97. 10 by the MNIT Management to deny relationship of master and servant on the plea that workmen are employees of the mess committee is nothing but a camouflage to deprive them of their legitimate entitlements. Learned counsel for respondents relied on the judgment of this Court in Anshkalin Samaj Kalyan Sangh Banswara Vs. State of Rajasthan : WLR 1996 Raj. 291 and argued that this court in the aforesaid judgment has rejected the argument of the mess committee in case where workmen were engaged in hostels run by government. Said judgment was lateron followed by another co-ordinate bench of this Court in Dayalal and 6 ors. Vs. The State of Raj. & Ors. : WLC Raj. (2003) 3 599. Learned counsel relied on judgment of Supreme Court in Parimal Chandra Raha and others Vs. Life Insurance corporation of India and others : 1995 Supp. (2) SCC 611 where LIC entrusted its Canteen to the contractors while retaining supervision and control over the functioning of the aforesaid canteen. Infrastructure was also provided by the LIC and the workers of such canteens, although the canteens were non- statutory, were directed to be treated as SBCWP NO.6119/97. SBCWP NO.4502/97. 11 employees of the LIC. Learned counsel also relied on the judgment of Calcutta High Court in Coates of India, Ltd. Vs. Fourth Industrial Tribunal, West Bengal and others : 1981 LLN 103 on the same point. It is, therefore, prayed that the writ petition be dismissed. 9) I have considered the rival submissions and perused the material available on record. 10) Whether or not the workmen in question are employees of the MNIT shall have to be examined on the basis of evidence that was adduced before the Tribunal to find out as to if findings recorded by the Tribunal can be sustained on such evidence. First document of Annexure-3 dated 30/4/1990 gives composition of the Mess Committee which consisted of Dr.Vasudev Convener, Dr.Ranjeet Singh Mess Warden, Dr.R.P. Kashyap Mess Warden, Dr.R.K. Yadav Mess Warden, Dr.O.P. Kachchawa Mess Warden were all teaching faculty working with the MNIT Management. Shri K.B. Pareek and Shri O.P. Sharma respectively, described as Manager Hostel and Mess Supervisor were also employees of the MNIT Management. Moreover, five Mess Attendants namely; Shri Nalin Gupta, Shri Ummed Singh, Shri Brijendra SBCWP NO.6119/97. SBCWP NO.4502/97. 12 Singh, Shri R.C. Kalra and Shri Paritosh Sharma were all employees of the MNIT Management working on the post of UDC with them. It is not disputed that Convener of the Mess Committee is a Professor of the MNIT. Manager Hostel, Mess Supervisor, Mess Attendants, Hostel Warden, Mess Supervisor are all employees of the MNIT. It is clearly borne out from minutes of the meeting at Annexure-3 that MNIT through its officers exercised effective control and supervision over the working of the mess staff. On the question of discipline in para 8 of the minutes, it is recorded that Mess Assistant and Mess Secretary would be entitled to give warning and charge sheet to the employee concerned and would give its information to the Mess Supervisor. At Item No.12 of the minutes, salary and annual increments of the employees were determined. All other documents which have been produced before the Tribunal as also before this court with regard to the functioning of the mess committee clearly reveals that they are either signed by the Chief Warden or Warden concerned, apart from Mess Supervisor and Mess Secretary. The note sheet dated 6/3/1980 which is on record by which SBCWP NO.6119/97. SBCWP NO.4502/97. 13 salary of certain officers was revised were signed by Warden, Chief Warden and Deputy Registrar (Accounts). Leave for previous absence of Ratan Singh, Malam Singh, Shivani etc. was sanctioned vide order dated 4/12/1990 which was signed by the Incharge Warden, Mess Secretary, Chief Warden apart from Mess Secretary. Mere fact that Mess Secretary has also put signatures on such documents does not prove that Chief Warden/Warden or Mess Supervisor or the Hostel Warden did not have the actual control and supervision over the staff of the Mess Committee. 11) Yogesh Mohan, a witness produced on behalf of the MNIT Management admitted in is cross-examination that Warden of the Hostel is Chairman of Mess Committee. Similarly, Ravindra Pal Kashyap in his affidavit admitted that he was working on the post of Reader with the college and was also Mess Warden since 1984. Shri K.B. Pareek in his affidavit admitted that mess committee is constituted every year. While students of the hostel are its members, Warden of the hostel is also one of its officer and decisions are taken by the Members and Mess SBCWP NO.6119/97. SBCWP NO.4502/97. 14 Secretary. Exh.M-5 which is Annexure-3 clearly proved that regular employees of MNIT were members of the committee and that actual supervision and control would rest with the MNIT Management. Cross examination of Shri K.B. Pareek reproduced in para 17 of the award clearly proved the point in favour of workman where he admitted that payment to the employees of the Mess Committee is made by MNIT College as per entries made in the muster rolls. He stated that muster rolls are cross checked. He also admitted that until muster rolls are signed by Registrar, Deputy Registrar and Accountant, bills are not cleared and payment is not made to the employees of the Mess Committee. That the control over the employees of the mess committee is with the MNIT Management, reference may be made to finding recorded by the Industrial Tribunal in para 18 of its award wherein the learned Tribunal found it proved in evidence that expenses are borne by the students but are realised by the college management and such amount is retained by the college and payment of the salary is made by the college. It cannot be accepted therefore that MNIT was only custodian SBCWP NO.6119/97. SBCWP NO.4502/97. 15 of that money. 12) Mess charges were deposited by the students with the MNIT Management and the salary bills of the mess employees was sanctioned by the Registrar/Deputy Registrar (Accounts) of the MNIT Management. In this regard, statements of Shri K.B. Pareek and Ravindra Pal Kashyap were rightly believed by the Tribunal. MNIT Management exercised actual control and supervision over the mess employees. Their leave was sanctioned and absence was regularised by grant of leave under the orders of the Chief Warden/Warden. No rule or regulation was produced by the MNIT Management before the Tribunal, under which, Mess Committee was constituted. Constitution of the mess committee thus appears to be a method to devise to, as rightly submitted by learned counsel for respondents, to deprive the workmen from their legitimate entitlements. 13) Judgment of this Court in Anshkalin Samaj Kalyan Sangh's case supra on which reliance has been placed by the learned for the respondent-workmen was a case involving the hostels run by Social Welfare Department of the SBCWP NO.6119/97. SBCWP NO.4502/97. 16 State wherein a similar plea was set up by the State Government with regard to the employees of the hostel run by it. Writ Petitions were filed by Cook/Hostel Superintendents like in the present case of such hostels where plea similar to the one which has been set up in the present case, that they were employees of the Mess Committee, was rejected by this Court, holding thus:- “The “Mess Committees” of the hostel is not a corporate entity or a distinct individuality. This is a committee appointed under the Rules of 1982. The arrangements which are the “Mess Committee” is supported to manage the hostels is not even like an arrangement with an independent contractor moreover even person employed through an independent contractor can be taken to be an employee of the principal who engaged the contractor. In this case the employment is said to be through “Mess Committee” which is nothing but a body appointed by the State itself to carry on day to day activity and to look after daily chorus of the hostel.” 14) This judgment was followed subsequently by another co-ordinate bench of this court in Dayalal supra, in para 15 of which, it was held as under:- SBCWP NO.6119/97. SBCWP NO.4502/97. 17 “It is clear from the direction issued by this court in Anshkalin Samaj Kalyan Sangh's case (S.B. Civil Writ Petition No.3453/94) that benefit of the order dated 26 May 1995 be provided to all similarly situated employees irrespective of th fact whether such employees have filed petitions in the court or not and further direction to give benefit of this order to those employees who were in service on the day of filing of the petition or the date of the order passed in above writ petition as the case may be. The respondents despite this direction of this Court did not disclose in what circumstances again the petitioners were given appointment on the post of Cooks and Chowkidars particularly in the light of the observations of this Court in said judgment that “mess committee” is not a corporate entity or a distinct individually and the committee is appointed under the Rules of 1982 and supposed to manage the hostels which is not even like an arrangement with an independent contractor and despite the observations of the High Court that even a person employed to an independent contractor can be taken to be an employee of the principal who engaged the contractor and knowing it well that services of Cooks and Chowkidars are full time services and not part time services. At this state I need not to go into to find out, whether the petitioners can claim their direct employment even if their appointment orders are issued by the “Voluntary Organisations or Cooperative societies” or by the “mess committee”. The fact is that (1) the the petitioners are in employment and the employment was given under Rules of 1982 and (2) the employees similarly situated and worked for five years of and (3) the State government permitted these employments (of Superintendents) for such a long period of about 13 years when the writ petitions were filed and now the petitioners have almost completed about more than 17 years and despite above referred judgment of SBCWP NO.6119/97. SBCWP NO.4502/97. 18 this court the Cooks and the Chowkidars were given appointments against then (4) why the similar scheme cannot be framed to regularise the services of these employees in the same line in which the scheme was framed earlier has not been disclosed and particularly because of the reasons that (5) the posts are available and (6) these employees cannot be denied their right of consideration nor can be compelled to work on such of meager consolidated amount of only and (7) the practice of employing class IV and other employees on consolidated amount was deprecated by the High Court and (8) the directions of the High Court issued in the writ petition No.497/98 Ram Babu Sharma vs. State & Ors. And the directions issued in S.B. Civil Writ Petition No.3453/94 could have been implemented by framing scheme but instead of giving effect to the direction of this Court and instead of giving effect to the directions of this court in true spirit and perspectives. In fact the State flouted the spirit and the direction of this Court. So far as appointments to the post of Cooks and Chowkidars are concerned, certainly they were given appointment in the years 1995 and onwards but by now these employees have completed service of about more than 3 to 7 years. As per the decision of this Court delivered in case of Anshkalin Samaj Kalyan Sangh, the appointments on the post of Cooks and Chowkidars are full-time job and it is not in dispute that posts are in existence and required to be kept filled therefore, for those employees also there exists no reason for not framing the same scheme as framed earlier as right of consideration of their candidature accrued in favour of these employees also and these employees cannot be removed to give appointment to the ex-army serviceman or their widows. Therefore, the petitioners are entitled for the reliefs claimed in the writ petitions.” SBCWP NO.6119/97. SBCWP NO.4502/97. 19 14) Judgment of the Supreme Court in Haldia Refinery Canteen Employees supra relied on by the learned counsel for the petitioners is distinguishable because in that case, contractor was running the canteen for which he was awarded contract by the Indian Oil Corporation Ltd. It was the contractor who exercised the effective control over the workmen of the canteen which was being run to provide meal and food to the employees. In that context, Hon'ble Supreme Court held that the workmen being employees of the contractor, the workmen working in the canteen could be considered workers of the establishment for the purpose of the Factories Act only and not for any other purpose like absorption etc. In KGSD Canteen Employees supra, the facts were entirely different wherein the canteen was being run by the contractor for the benefit of employees of the industrial establishment. It was held that there is no statutory compulsion on the State to run a canteen and even if there would be any, it would not automatically lead to a conclusion that employees of canteen would be employees of SBCWP NO.6119/97. SBCWP NO.4502/97. 20 principal employer for all intents and purposes and not for the purpose of Factories Act. In those facts, it was held that there did not exist relationship of employee and employer. In Canteen Mazdoor Sabha supra also cited by the learned counsel for the petitioners, employer and employee relationship was held to be not existing because canteen was being run on contract basis for employees of the establishment by a contractor. In the present case, there is no contractor in the site and, therefore, ratio of the cited judgments could not be applicable. 15) Evidence on record reveals that control and supervision over the working of the employees of the Mess Committee rest with the officers of the MNIT. Finding recorded by the learned Industrial Tribunal that there did exist relationship of master and servant between employees of mess committee and MNIT has to be therefore upheld and argument to the contrary merits rejection. 16) Coming now to the second writ petition filed by some of the