IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 WP(C).No. 15276 of 2004(R) -------------------------- PETITIONER: ------------ M/S. BALMER LAWRIE & CO.LTD., REPRESENTED BY ITS ASSISTANT GENERAL MANAGER (HR). BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENTS: ------------- 1. THE GENERAL SECRETARY, CHERTHALA TALUK, INDUSTRIAL EMPLOYEES UNION(CITU), AROOR P.O. 2. THE EMPLOYEES CO-OPERATIVE SOCIETY LTD. NO.A.904, AROOR. 3. INDUSTRIAL TRIBUNAL, ALAPPUZHA. BY ADV. SRI.V.G.ARUN FOR R2 SRI.M.V.MATHEW FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 15276/2004. ----------------------------------------------------------------------- EXT.P1 TRUE COPY OF AWARD IN I.D.NO. 88/2000 DT 3-1-2004. EXT.P2 CLAIM STATEMENT DT. 24-2-2001. EXT.P3 WRITTEN STATEMENT DATED APRIL, 2001. EXT.P4 WRITTEN STATEMENT DT. 29-9-2001. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 15276 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd June, 2008. J U D G M E N T Petitioner is the management in I.D.No. 88/2000 before the Industrial Tribunal, Alappuzha. The petitioner is challenging Ext. P1 award passed by the Tribunal in that I.D. The issue referred for adjudication was: “Whether the action of the management of Balmer Lawrie & Co. Ltd., Aroor in denying the employment to 16 canteen workers (list enclosed) and also not treating them as Company's employees is justified? If not, to what relief the workers are entitled?” The Tribunal noted that the canteen is one managed by the petitioner under Section 46 of the Factories Act and relying on the decision of the Supreme Court in National Thermal Power Corporation v. Karri Pothuraju and others, 2003-III LLJ 567, held that the workmen of the canteen are workmen of the petitioner although engaged through a contractor. The petitioner submits that the Supreme Court itself had, in a later decision in Haldia Refinery Canteen Employees Union and another v. Indian Oil Corporation Ltd. and others, 2005-II LLJ 684, held that employees in a statutory canteen run by a contractor are employees of the principal employer only for the purpose of Factories Act and not for any other purpose. The petitioner therefore submits that simply because the canteen is a statutory canteen ipso facto it does not lead to the inference that the canteen employees are employees of the factory. He would further submit that since the Union has not adduced any evidence to show that the contract between the petitioner and the contractor is a sham document, without which the Tribunal could not have come to the conclusion that the workers under the contractor are regular workers of the Company. 2. I have considered the contentions of the petitioner in detail. 3. Counsel for the 1st respondent Union is not present. W.P.C. No. 15276/2004 -: 2 :- 4. A reading of Ext. P1 award would show that the Tribunal solely relied on the Supreme Court decision in National Thermal Power Corporation's case (supra) to hold that since the canteen is a statutory canteen, the canteen employees are employees of the petitioner. In view of the decision of the Supreme Court in Haldia Refinery's case (supra), I do not think that the Tribunal, without any further evidence to show that the facts and circumstances would lead to the conclusion that the workers of the contractor were direct employees of the Company, could have held that the workers are workers of the petitioner. As held by a Division Bench of this Court in Hindustan Newsprint Industrial Canteen Workers Union v. Hindustan Newsprint Ltd., 2006 KLT 103, it all would depend on the evidence on various aspects such as, whether the contract entered into between the principal employer and the contractor is a bona fide or a sham transaction, whether the terms of the contract would amount to in fact absolute control on the part of the principal employer in the running of the canteen, whether the principal employer had any role in the recruitment of the employees, whether the principal employer had control over the employees of the canteen etc., etc.,. Here, the Tribunal does not refer to any evidence whatsoever other than the fact that it is a statutory canteen under Section 46 of the Factories Act to hold that the workers are direct employees of the Company. I am of opinion that without any evidence regarding the fact as to whether the contract between the petitioner and its contractor is a sham document and other circumstances leading to the irresistible conclusion that the workers were actually workers of the Company, the Tribunal could not have come to that conclusion. Therefore, clearly Ext. P1 award is unsustainable. Accordingly, the same is W.P.C. No. 15276/2004 -: 3 :- quashed. I hold that in that I.D., the workers are not entitled to any reliefs. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/