IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY THE TWENTY FOURTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL No.1296 of 2003 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 12/06/2003 in WP No.711 OF 1994 on the file of the High Court.) Between: Hindustan Aeronautics Limited, HAL Post Office, Hyderabad - 500 042, represented by its General Manager ..... APPELLANT AND 1 The Presiding Officer, Chandra Vihar, Industrial Tribunal, Hyderabad 2 Smt. Erramma, Smt. Mallamma, Smt. Sakkubai, Smt. G. Suverna and Smt. Devamma, Workmen of Hindustan Aeronautics Limited, Hyderabad, C/o. A/634, HAL Colony, Hyderabad -42 .....RESPONDENTS Counsel for the Appellant:MR.K.SRINIVASA MURTHY Counsel for the Respondent No.1: G.P.FOR LABOUR Counsel for the Respondent No.2: MR.G.VIDYA SAGAR The Court made the following: Form-NIC-OGS/WA { } THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL No.1296 of 2003 JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) This is an appeal filed by the appellant-Hindustan Aeronautics Limited against the order of a learned single Judge in W.P.711/1994, dated 12.06.2003 in confirming the Award dated 13.08.1993 in I.D.No.33/1990 of the Industrial Tribunal at Hyderabad. 2. It is the case of the 2nd respondent-workmen that they are working through out the year in the canteen run by the Hindustan Aeronautics Limited and the nature of the work is perennial and they have put in more than 15 years of service and they are entitled for regularization of their services. The said dispute was referred to by the Government of Andhra Pradesh in G.O.Rt.No.1702, dated 07.07.1990 under Sec.10(1)(d) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) between the said 2nd respondent workmen and the appellant herein for adjudication of the dispute by the Industrial Tribunal as to whether the said workmen who are women workers working under the management of the appellant are entitled to be regularized. 3. The Industrial Tribunal at Hyderabad enquired into the matter and one of the workers was examined as WW 1 and she deposed that she has been working in the appellant’s canteen as worker since 12 years along with other workers and she gave evidence on her behalf and on behalf of four women workers, namely Yerramma, Mallamma, Sakkubai and G.Suvarna who are also involved in the said I.D.along with her. It is stated that one Yerramma and Mallamma are working in the canteen along with her since 18 years. Sakkubai has been working since 15 years. G.Suvarna has been working since 12 years in the said canteen. All of them are working regularly without any break in the said canteen ever since they joined the service. All the five workers are working in the said canteen as per the instructions of the canteen Supervisor. They are cutting the vegetables, cleaning the rice, pulses etc. and doing all the works as per the instructions of the canteen supervisor. The canteen is being run by the appellant company. They have been working in the canteen from 9 a.m. to 5 p.m. and all of them were issued with gate passes. Exs.W1 to W5 are the Photostat copies of gate passes issued to her and four other workers involved in the said I.D. Ex.W6 is the letter dated 04.10.1991 issued by the Deputy Manager of the appellant Company to the Security Officer for issuance of the gate passes to them till the end of October, 1991. They are entitled for absorption in the regular service and therefore, they have filed Ex.W7 application for their absorption. It is stated that similarly situated casual workers in the canteen were absorbed in the services of the appellant company. It is stated that earlier they have filed W.P.13047/1983 on the file of this Court which was disposed of, directing the appellant that pending decision of the Industrial Tribunal pursuant to the reference made by the Regional Commissioner, Labour, they shall be continued to be employed by the appellant company on the same terms and conditions and thus, they have been continuously working and hence, they are entitled for absorption in the regular service of the appellant company and also for payment of wages on par with the regular employees. 4. WW 2, a cook in the canteen and regular employee of the appellant company, deposed that he knew the workmen since 18 years and they are also working in the canteen along with him and the said workmen are doing cleaning of rice etc., and doing whatever work that was entrusted to them by the supervisor. They are working regularly without any gap. The canteen is being run by the management of the Hindustan Aeronautics Limited. There is a canteen Committee elected by the employees of Hindustan Aeronautics Limited and the Committee is looking after as to how the things are running in the canteen. Thus, on behalf of the workmen WW1 and WW 2 were examined and Exs.W1 to W8, viz., gate passes, letter issued by the Deputy Manager for issuance of gate passes, the Xerox copy of application of the workmen for regularization of their services and Xerox copy of statement relating to the wages and the increased wages paid to them as per piece rate by the Department were filed. 5. On behalf of the management, MW 1 Deputy Manager (Canteen) who has been working since last 15 years was examined and stated that the canteen works in three shifts for Hindustan Aeronautics Limited employees and there are 90 permanent employees in the canteen. It is stated that the vacancies will be filled through the Employment Exchange under regular selection process and the 2nd respondent-workmen are engaged intermittently for picking up stones in rice and pulses whenever they require, and if good rice is procured, the picking of stones is not required, and for cutting vegetables and washing dishes, separate employees are engaged in three shifts, but he cannot give their names, but he was able to give, as per remembrance, only three names. It is stated that he has no supervising control over the said workmen. It is stated that the said workmen come and work some time and carried out the work and distribution of the work is done among themselves. The gate passes were not given fixing the time for the said workmen. It is stated that the type of work carried on by the workmen is not on permanent nature and they have not worked in any calendar year for 240 days and wages are paid in cash. The management is paying the ESI and Provident Fund to the casual employees. Ex.M4 is the list of the casual labour engaged in the canteen. For running the canteen, they have a canteen managing committee and the canteen is run by the subsidy given by the management and the Managing Company is the advisory body. 6. MW 2, a personal officer in the appellant company, deposed that the vacancies will be filled by the Management Services Department which will approve the vacancies, notifying the vacancies in the Employment Exchange and on receiving the list of candidates, call letters will be sent and selection will be made. But, in so far as the workmen are concerned, they are paid wages as per the quantity of rice on monthly basis. 7. The evidence adduced by both sides has been appreciated by the Industrial Tribunal and held that the workmen have put in more than 15 years service and the nature of the work is perennial in nature and in every month 120 bags of rice, 100 bags of pulses are used by the canteen and about 3,000 workers eat in the canteen in all three shifts put together. They consume four bags of rice and three bags of pulses every day. The canteen is meant for the service of food and refreshment to the workers and there is a fixed menu, and the function of the canteen is to see that the food is to be served to the utmost satisfaction of the workers and therefore, the nature of the work carried on by the workmen is required in the canteen. Thus, a finding has been recorded that the nature of the work of the workmen is perennial and the canteen is run through out all the three shifts and the canteen management has to serve food through out the year and it is a continuous process. The absorption of some of the casual labour who have put in more than 240 days also noticed and taking into consideration of all the facts and circumstances, the Industrial Tribunal found that the workmen are working through out the year and the work is of a perennial in nature and they have put in more than 15 years of service, and therefore, they are entitled for absorption in the regular service, and accordingly, it was declared that the said workmen are entitled to be treated as regular workmen by the appellant management along with all benefits on par with the regular employees. 8. Aggrieved by the said award of the Industrial Tribunal, Hyderabad dated 13.08.1992, the appellant company filed W.P.711/1994 before this Court and a learned single Judge, on re- appreciation of the entire oral and documentary evidence, held that since the findings of the Tribunal are based on material available on record including oral and documentary evidence, dismissed the writ petition, confirming the award of the Industrial Tribunal. 9. Aggrieved by the said order of a learned single Judge dated 12.06.2003 in W.P.711/1994 this writ appeal has been filed, contending that the workmen are the contract labours and there is no relationship of Master and Servant or Employer or Employee and they do not come within the definition of workmen, as per the Industrial Disputes Act and the nature of the work is not regular and it is not perennial in nature. There was no obligation on the part of the appellant company to give regular work to the workmen and they are not entitled to enter into the service of the appellant company through the back door entry, without regular process of selection and thus, contends that the Industrial Tribunal as well as the learned single Judge both erred in holding that the workmen are entitled to be treated as regular workmen. 10. We have heard the rival contentions of the respective parties. 11. In the instant case, the appellant is discharging a statutory obligation of maintaining a canteen in an industrial establishment and admittedly, the canteen was not being run through the contractor, and therefore, the principal employer is the appellant company. The appellant company is indisputably obliged to run the canteen in its regular establishment and on account of obligation cast upon it under mandatory provisions of the Factory Act, 1948 and the Rules made thereunder, and admittedly, 90 workers are working in the canteen as regular employees, it cannot be said that the nature of the work of the said workmen is not perennial in nature, and basing on the oral and documentary evidence available on record, it cannot be said that the Industrial Tribunal has erroneously held that the workmen are working through out the year and that the work is perennial in nature and that they have put in more than 15 years of service and that the said workers are entitled for regularization of their services and that there is no employer and employee relationship between the said workmen and the appellant company. Therefore, the judgment relied on by the learned counsel for the appellant in the case of U.P.Power Corpn. Ltd. v. Buli Mazdoor Sangh[1] has no application, as in the instant case, the workmen never worked as pump operators, but were engaged as daily labour on daily wages, but whereas in this case, the workmen worked through out the year and the wages are being paid month-wise. 12. The learned counsel for the appellant also relied upon another judgment of the Supreme Court in the case of Hindustan Aeronautics Ltd. v. Dan Bahadur Singh[2]. The facts of the said case are that the workers union therein filed the writ petition in the High Court of Lucknow Bench and the Bench having noticed that the workers were engaged as daily wage workers for 18 to 20 days and it was their contention that they have completed 240 days and rendered service for more than 8 years, and in those circumstances, the writ petitions are disposed of, directing the company for their absorption and in respect of some other workers, who have been disengaged, and whether there was any perennial nature of work is available or not shall be decided by the Deputy Commissioner of Labour. The judgment of the said High Court was challenged in the Supreme Court. The Apex Court held that the affect of the directions of the High Court amounts to creation of post and also payment of salary in the absence of any post being available to a daily wageworker. On the facts and circumstances of the said case, the Apex Court held that the judgment of the High Court is unsustainable and accordingly, the judgment of the High Court, as confirmed by the Division Bench was set aside, making it clear that the workmen or their union are entitled to enforce their rights, in accordance with law, and as per the terms of the settlement. 13. We are of the opinion that the aforesaid judgment has no application as the said case arose out of a decision of the High Court without there being any record of finding of facts by the Tribunal. But, whereas in the instant case, the Industrial Tribunal recorded a clear finding about the perennial nature of the work and about continuous working of the workmen for more than 15 years and therefore, it cannot be said that there was no vacancy and that they are only daily wage workers. Therefore, we are unable to appreciate any of the contentions advanced by the learned counsel for the appellant. It is stated that the workmen are still continuing, but their services have not been regularized so far. 14. It is stated that recently all the employees of the canteen are absorbed in other services of the appellant company by entrusting the canteen to a contractor. If all other employees are engaged in the required services, there cannot be any justification on the part of the appellant company in not giving the same benefit of award to the 2nd respondent-workmen by engaging their services in the appellant company. Therefore, we do not see any merits in the writ appeal and the Writ Appeal is, accordingly, dismissed. No order as to costs. __________________ V.ESWARAIAH,J ____________________________ VILAS V. AFZULPURKAR,J Dated: 24.02.2009 Dsr ........REGISTRAR To 1 The Presiding Officer, Chandra Vihar, Industrial Tribunal, Hyderabad 2.2 CD copies [1] (2007) 5 Supreme Court Cases 755 [2] (2007) 6 Supreme Court Cases 207