IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH SEPTEMBER, 2009 / 17TH BHADRA, 1931 WP(C).No. 35703 of 2003(A) PETITIONER: ------------------ TRANSFORMERS AND ELECTRICALS KERALA LIMITED, ANGAMALY SOUTH, REP. BY ITS MANAGING DIRECTOR. BY SR.ADV. SRI.M.PATHROSE MATTHAI. SRI.SAJI VARGHESE SMT.MARIAM MATHAI RESPONDENTS: ---------------------- 1. THE SECRETARY, ERNAKULAM JILLA CANTEEN, BAKERY AND HOTEL MAZDOOR SANGH (BMS) H.O.BMS OFFICE, ALUVA. 2. THE SECRETARY, TELK CANTEEN WORKERS' UNION (INTUC), ANGAMALY. 3. THE SECRETARY, TELK CANTEEN EMPLOYEES' UNION (CITU) ANGAMALY SOUTH. 4. THE GOVERNMENT OF KERALA REP. BY ITS SECRETARY TO LABOUR AND REHABILITATION(A) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 5. THE PRESIDENT, TELK WELFARE SOCIETY, ANGAMALY. 6. THE TELK EMPLOYEES CANTEEN CO-OPERATIVE SOCIETY LTD., ANGAMALY SOUTH REP. BY ITS SECRETARY. BY ADV. SRI.K.BALACHANDRAN (MANGALATH) FOR R3 SRI.RAJESH NAIR FOR R3 SRI.BIJOY CHANDRAN FOR R3 SRI.NIZAM IBRAHIM FOR R3 SRI.A.JAYASANKAR FOR R2 SRI.C.ANIL KUMAR FOR R2 SRI.K.SHRIHARI RAO FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON 08/09/2009 DELIVERED THE FOLLOWING: APPENDIX (WP(C) NO.35703 OF 2003) PETITIONER'S EXHIBITS: Ext.P1: True copy of Award in I.D.No.60 of 1992 dtd.12.2003. RESPONDENTS' EXHIBIT: Ext.R1(a): Copy of the Government Order G.O(MS) No.32/2005/ID dtd.30.3.2005 issued by the 4th respondent. -True Copy- P.A.to Judge. V.K.MOHANAN, J. --------------------------------------------- W.P(C).No. 35703 of 2003 A --------------------------------------------- Dated this the 8th day of September, 2009 J U D G M E N T The management in an industrial dispute, I.D.No.60 of 1992, is the petitioner herein, who challenges Ext.P1 award, as the same is against the management. Ext.P1 award dated 1.2.2003 was passed in pursuance of a direction issued by this Court vide judgment dated 15.2.2002 in O.P.No.11090 of 1997, when the same management challenged the award dated 29.4.1997 of the Industrial Tribunal, Alappuzha. By Ext.P1 award, the Tribunal has held that the workman working in the canteen established by the management under Section 46 of the Factories Act shall have to be treated as employees of the main establishment. It is the above finding or award challenged in this writ petition. WP(C) NO. 35703 of 2003 :-2-: 2. During the enquiry in the Tribunal, MWs.1 to 3 were examined from the side of the management and W1 and W2 were examined from the side of the workman and M1 and M2 and C1 to C4 were marked from the side of the management and W1 to W34 were marked from the side of the Union. 3. The petitioner is a company employing more than 1200 workers in its factory and a canteen is being conducted in the company compound. The above canteen is registered under the Kerala Shops and Commercial Establishments Act (for short 'the Act'). Now, the canteen is run by the Telk Employees' Canteen Co-operative Society Ltd.. Respondents 1 to 3 are the various unions of the employees of the canteen. The unions made certain demands and placed a charter of demands for long term settlement as the earlier settlement expired. WP(C) NO. 35703 of 2003 :-3-: In this case, Ext.P2 is the demand, out of which one demand is to recognise the canteen workers as company workers. The stand of the management is that no demand or industrial dispute can be raised by the employees of the canteen represented by their Union against the petitioner-company as there is no employer-employee relationship between the petitioner-management and the workman of the canteen. The Government of Kerala referred the issue for adjudication, as a dispute between the Unions representing the workman in the canteen and the company as well as the contractors to the fifth respondent. 4. In the Industrial Tribunal, Alappuzha, the dispute was numbered as 60/1992. The Unions representing the workman claimed that the canteen workers should be treated as company workers. In their objection, the petitioner-company raised the WP(C) NO. 35703 of 2003 :-4-: objection against the very validity of the reference order itself and contended that there can be no industrial dispute as there is no employer-employee relationship between the petitioner and the employees of the canteen. Thus, according to the management, the order of reference was without jurisdiction and without authority of law. Thus, on the basis of the pleadings and rival contentions, the Industrial Tribunal, finally found that for all practical purposes, the canteen has to be treated as one of departments of the company and the Tribunal further held that the canteen is a statutory canteen and the employees therein are entitled to absorption in the company in view of the decision of the Supreme Court reported in Parimal Chandra Raha and others v. LIC of India and others (1995 Lab.IC 2064 = (1995(2) LLJ 339) WP(C) NO. 35703 of 2003 :-5-: 5. It is the said award challenged by the management before this Court by filing O.P.No.11090 of 1997. This Court, while disposing of the above writ petition, by judgment dated 15.2.2002, observed that Ext.P4 award is based mainly on the observations of the Apex Court in its judgment in Parimal Chandra Raha's case (cited supra). The learned Single Judge of this Court found that in the above Supreme Court case, there was a finding that there was due contract and supervision of work by the employer or the employees of the canteen. This Court also found that in that case, though the Supreme Court was considering the case of non statutory canteen, the Supreme Court has held that if the employer has a statutory duty to provide canteen for the use of its employees, the canteen is part of the establishment and appointment of contractor or an agency is only WP(C) NO. 35703 of 2003 :-6-: a device and employees in the canteen will be treated as employees of the main establishment. According to this Court, the Supreme Court has also stated that the obligation to provide a canteen is distinguished from the obligation to provide factories to run a canteen. Thus, after considering the various statutory provisions, especially in the light of the discussions and the finding of the Honourable Apex Court in the decision cited supra, this Court has held that the Tribunal has specifically found that whether such canteen employees can be treated as employees of the company and whether the dispute raised by the Unions is consequently valid. 6. Apart from that, by the above judgment, this Court has also noted that in the above mentioned decision of the Apex Court, the Apex Court has not considered the question as to whether WP(C) NO. 35703 of 2003 :-7-: the contractor's workmen or their Unions can raise a valid industrial dispute. Thereafter, on consideration of the various decisions of the Apex Court, this Court has further held, in view of the decision of the Apex Court cited therein, that when an industrial dispute is raised by the workmen of the contractor against the principal employer of a main establishment, the Industrial Tribunal is bound to consider, whether there is valid industrial dispute or not. It is specifically found that in the present case, the management disputed the employer-employee relationship and raised such a question in the written statement. It is also found that if the Tribunal finds that the contract is sham or not and employees are really employed by the company itself, the Tribunal can consider the merits of the case. It is further found that if the Tribunal found that the contract is not sham, but a genuine WP(C) NO. 35703 of 2003 :-8-: contract, he cannot give any relief against the company as the industrial dispute against the company is without jurisdiction. Thus, it is specifically found in para 6 of the judgment of this Court that the questions whether the contract is sham or genuine and whether the industrial dispute is valid or not etc. were not considered by the Industrial Tribunal in this case. 7. Thereafter, this Court indicated, after referring to several other decisions, the legal requirement of such an enquiry and a finding thereto. Thus, this Court disposed of the above writ petition and the operative portion of the judgment reads as follows:- “Separate order need not be passed on the preliminary point. That issue shall be first decided with a finding. Thereafter, if the finding is that it is maintainable, tribunal has to give its award on merit considering the industry-cum-region basis, financial capacity of the employer and other well defined WP(C) NO. 35703 of 2003 :-9-: principles in wage revision. No such effort was made in the present award. Both parties are free to adduce fresh evidence. Since the reference was made in 1992, the Industrial Tribunal shall pass the award within six months from the date of receipt of a copy of this judgment. Registry is directed to send a copy of this judgment to the Tribunal, urgently” 8. Now the case of the petitioner/company is that the Tribunal miserably failed to pass an award in terms of the remand and direction issued by this Court by the above judgment. According to the petitioner, after remand, they have filed nine fresh documents before the Tribunal, but when the impugned award was passed, none of those documents were referred or adverted and without properly appreciating the evidence, the Tribunal has erroneously come to the conclusion that the contract is sham and held that the workman working in the canteen established by the Telk Management has to be treated as employee of the WP(C) NO. 35703 of 2003 :-10-: main establishment. According to the petitioner, the Tribunal has not considered as to whether the contract is a genuine one or not. Thus, they challenge Ext.P1 award. 9. Sri.M.Pathrose Mathai, learned Senior Counsel appearing for the petitioner emphatically submits that Ext.P1 award cannot be treated as an award passed by the Tribunal in compliance of the specific terms contained in the remand order of this Court. According to the learned counsel, had the Tribunal considered the documents produced by the petitioner, the Tribunal could not have come to such an erroneous conclusion. In support of the contention, the learned Senior Counsel invited my attention to a decision reported in Haldia Refinery Canteen Employees Union and Others v. Indian Oil Corporation Ltd. and Others (2005(5) SCC 51). According to the learned counsel, the canteen, now WP(C) NO. 35703 of 2003 :-11-: run by a Co-operative Society is a body incorporated and established under the provisions of the Kerala Co-operative Societies Act and Rules, has got a corporate entity and therefore, according to the learned counsel, the contract is not a sham one and it is genuine and therefore, had the Tribunal considered the question in the light of the remand order, after referring to the documents which are produced by the management, the result would have been a different one. Therefore, according to the learned counsel, Ext.P1 award is liable to be reconsidered by the Tribunal, in terms of the direction issued by this Court in the judgment referred above. 10. On the other hand, the learned counsel viz., Sri.K.Srihari Rao, Sri.K.Jayasankar and Sri.K.Balachandran, counsel appearing for respondents 1 to 3 submits that the canteen is part WP(C) NO. 35703 of 2003 :-12-: of the establishment. They invited my attention to various documents viz., Exts.W4,W8 and W9 and submitted that the agreement, under which the canteen being run, would show that the same were for and on behalf of the main establishment. By referring to Ext.W33, it is pointed out that the regular employees of the factory owned by the petitioner-company were deputed for the functioning of the canteen itself. It is also pointed out that as per the bye-law of the society, the management of the society is vested with the committee, out of which, six are elected persons from the general body of the society and the other three are persons nominated by the company, who are the managers of the management-company. Thus, according to the counsel for the respondents, even the control of the management is vested with the company and therefore, it can be seen that the WP(C) NO. 35703 of 2003 :-13-: agreement/contract is sham and not a genuine one. Thus, according to counsel for the respondents, no interference is warranted. Learned counsel very much relied upon the following decisions:- 1. Steel Authority of India Ltd. & Others v. National Union Waterfront Workers and Others (2001(7) SCC 1), 2. Hindalco Industries Ltd. v. Association of Engineering Workers (AIR 2008 SC 1867) $ 3. Kerala Electrical $ A.E.Co.Ltd. v. Leemns D'Cruze (2008(3) KLT 449) 11. I have carefully considered the arguments advanced by the Senior Counsel for the petitioner as well as the counsel for the respondents-Unions. 12. Going by the operative portion of the judgment of this Court which is extracted supra, it can be seen that the Tribunal was specifically directed that the issue shall be first decided with a finding. Therefore, the Tribunal has to find whether the canteen employees can be treated as employees of the company and whether the dispute raised by WP(C) NO. 35703 of 2003 :-14-: the Union is valid or not. Therefore, as per the direction of this Court, the Tribunal has also found that whether there is a employer-employee relationship so as to come into a conclusion, whether there is a valid industrial dispute or not. In order to answer the above question, the Tribunal has to find whether the contract is sham or genuine. But, in the present case, after the remand of the matter giving right to parties to adduce fresh evidence, the management has adduced evidence. But, in Ext.P1 award, there is no such discussion and specific and definite finding based upon any discussion and appreciation of evidence and materials on record, including the materials produced after remand. The above approach of the Tribunal cannot be recognised and approved by this Court. It is beyond dispute that the dispute was referred for adjudication on the basis of the charter WP(C) NO. 35703 of 2003 :-15-: of demand dated 29.5.1991, but, so far, no finality is attained in the adjudication proceedings with respect to the above dispute. Therefore, I am of the view that in order to put an end to the litigation and for the final settlement of the dispute, a well considered award has to be passed by the Tribunal in terms of the remand order of this Court issued as per the judgment dated 15.2.2002 in W.P.(C) No.11090 of 1997. In the result, this writ petition is disposed of remitting the matter back to the Industrial Tribunal for its fresh consideration regarding the issue highlighted above in terms of the remand order of this Court vide, judgment dated 15.2.2002 in O.P.No.11090 of 1997. The parties are free to adduce evidence, if so advised, to substantiate their contentions and pleadings with respect to the issue remanded for reconsideration. As the matter WP(C) NO. 35703 of 2003 :-16-: relates to the year 1992, the Industrial Tribunal, Alappuzha is directed to dispose of the matter within four months from the date of receipt of a copy of this judgment. The petitioner is directed to produce a copy of this judgment before the Tribunal. The Registry is directed to send a copy of this Judgment to the Tribunal urgently. V.K.Mohanan, Judge MBS/ WP(C) NO. 35703 of 2003 :-17-: V.K.MOHANAN, J. -------------------------------------------- W.P(C).NO.35703 OF 2003 -------------------------------------------- J U D G M E N T DATED: 8-9-2009 WP(C) NO. 35703 of 2003 :-18-: