1 Pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3260 OF 2011 Indian Oil Corporation Ltd. 254-C, Dr. Annie Besant Road. Prabhadevi, Mumbai 400 025 ...Petitioner Versus 1. Sarva Shramik Sangh Neelkanth Apartment, infront of Dr.Bhadkamkar Hospital, Mahagiri, Thane 400 601 2. Disha Caterars. Having their address at Dreams 2A-1701, L.B.S.Marg, Bhandup (W), Mumbai 400 078 ...Respondent Mr.K.P.Anilkumar for the Petitioner Ms. Nayana Buch with Mr. Shailesh More for the Respondent No.1 Mr.Amol Desai for the Respondent No.2 CORAM:- A.V.NIRGUDE J. DATED:- 2nd DECEMBER, 2011. ORAL JUDGMENT. 1. This Writ Petition filed under Article 226, 227 of the Constitution of India is challenging the interim order dated 16.3.2011 passed by the learned Presiding Officer, CGIT-II, Mumbai at Exhibit 10 of Reference CGIT-II/61 of 2009. The reference is made by the Government for deciding as to whether the respondent no.1 Union's 2 members/Workers are employees of the petitioner company and not the employees of the respondent no.2 or any other contractor engaged by the petitioner company. 2. The facts leading to this litigation, in short can be stated as under: The petitioner company started canteen facility for their staff at the office at Worli, Mumbai. For running the canteen, they engaged services of a Contractor. The workers, namely the members of the respondent no.1 Union got employment with the contractor and worked as canteen help, but soon the workers started demanding that the contract should be abolished and they should be absorbed directly in the service of the petitioner company. Initial attempt in that direction failed. Thereafter the respondent no.1 vide letter dated 18.3.2004 requested the Government for making a reference to the appropriate court/tribunal to decide as to whether the petitioner has engaged an contractor for name's sake and that whether they are in direct employment of the petitioner company? In the mean time the parties arrived at a compromise in Writ Petition (L) No.853 of 2004 (was filed by the respondent no.1 Union) and they filed minutes of order on 22.4.2004 on record. The minutes of order read as under: “ 1. It is agreed that services of the concerned workman at Sr.Nos.1 to 10 and 12 to 18 of Exhibit A to the petition shall be continued till the decision of the Reference sought through letter dated 18.3.2004 at Exhibit 11 to the petition, and for a period of four weeks thereafter. This is agreed without prejudice to the rights and contentions of respondent nos.1 and 7 and only by way of interim measure and without admitting any liability of respondent no.1 towards them 3 including disciplinary action for any misconduct. 2. The concerned workman shall be paid wages as notified from time to time under the Minimum Wages Act, 1948 as applicable to canteen and clubs without prejudice to the rights and contentions of all the parties. No variation shall be done in these terms without the prior permission of the Industrial Tribunal. These terms will be binding upon successive contractors.” 3. The letter of the respondent no.1 dated 18.3.2004 was eventually considered by the appropriate Government and it was decided not to make reference. Aggrieved by this respondent no.1 challenged this decision by filing writ petition No.1673 of 2005 and obtained interim protection akin to the minutes of order dated 22.4.2004, but the same was dismissed on merits. The respondent no.1 then challenged the order of this court in Writ Petition No.1673 of 2005 before the Supreme Court and the Supreme Court allowed their appeal on 13.4.2009 and issued a direction to the Appropriate Government to consider the request for reference in the light of the observations made in the judgment. Soon thereafter, the Appropriate Government made the reference, and the reference reach the Appropriate Court sometime in 2009. Until then and even a few months thereafter, it appears, the petitioner company continued the earlier commitment of protecting the workers' employment by directing the contractor/s to engage them as canteen help. But suddenly, during the pendency of the reference, on 30.8.2010 or thereabout the petitioner company admittedly refused to abide by their earlier commitment that they would engage a new contractor with specific term enjoining him to 4 continue the workers' employment as canteen help. This time, they took up a stand that the minutes of order of 22.4.2004 and the order of this court passed in Writ Petition No.1673 of 2004 had come to an end. In view of this, the employment of the workers got disrupted and they moved the present application for interim protection. They asserted that the effect of the order dated 22.4.2004 is effective till the disposal of the reference and four weeks thereafter. The learned Judge accepted their contention and passed the impugned order. The learned Judge also made other observations in the impugned order, but the same are not relevant for the present discussion. 4. The only question that is required to be decided in this writ petition is whether the minutes of order dated 22.4.2004 would decide the fate of the petitioner? The petitioner company tried in vain to interprete the minutes in a different way. But the wordings of the minutes clearly establish that the arrangement made as interim arrangement through this order would continue till the disposal of the reference and not till the Government decided whether to make reference or not. It could be a case of inept drafting. But the petitioner can not blame anyone for the same because the minutes were prepared by the parties and so the same would bind them. 5. In addition to this, the learned Advocate appearing for the appellant then asserted that the impugned order was passed on the application made under Section 33 of the ID Act. He said that the interim order is not permissible if an application under Section 33 is made. He also asserted that the provisions of Section 33 r/w. Section 33A would not allow any workman to make an application for interim 5 relief. Indeed, there is no dispute about the correctness of the submissions which are based also on judgments of various courts including the Judgment of Delhi High Court in case of Airport Authority of India vs. Pyare Lal & Ors. Reported in 2007 Vol-1 CLR page 246. However, I am not inclined to deal with this question because as stated above, the impugned order which is passed is compelling the petitioner to continue their commitment which came from the consent order dated 22.4.2004. The respondent no.1 may have referred to the provisions of Section 33 while pressing their application, but the application on which the impugned order is passed has noting to do with Section 33 or Section 33A. The learned Advocate appearing for the petitioner rightly contended that Section 33 presupposes the relationship between the employer employee and the pendency of the Industrial Dispute etc. In this case, the provisions of Section 33 will not have any role and use because as held above the respondent no.1 is entitled to extract the commitment which the petitioner had given vide order dated 22.4.2004. Fortunately for the petitioner, the respondent no.1 did not prefer the action like contempt of court etc against the petitioner for sudden breach of their obligation. So the submission on Section 33 made by the learned Counsel for the petitioner, though were quite instructive are not relevant. The petition stands dismissed. 6. Learned Advocate appearing for the petitioner sought stay to the effect of this order. Stay is refused. (A.V.NIRGUDE, J.) 6