WA 340/2006 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE C.R. SARMA This appeal arises out of the order dated 17/7/2006 passed by the learned Single Judge in WP(C) 3367/2006 lodged by the present appellant declining to suspend t he operation of the award dated 17/12/2005 passed by the learned Industrial Trib unal, Guwahati, in Reference No. 5(c) of 2002. The writ appellant being aggrieve d by the said award had sought the annulment thereof in the writ proceeding. In M.C. 3298/2006 related to this appeal, by order dated 26/9/2006, the interim rel ief as prayed for was granted. By order dated 8/1/2007 thereafter, this writ app eal was directed to be heard along with the aforementioned writ petition. Argume nts have accordingly been advanced and this adjudication would dispose of the wr it proceeding as well on merits. 2. We have heard Mr. A.K. Phukan, Sr. Advocate and Mr. N.C. Das, Sr . Advocate, being assisted by Mr. M.K. Mishra, Advocate for the appellant and Mr . B. Chakraborty, Advocate for the respondent association. 3. As aforesaid, the appellant Bank had approached this Court with a challenge to the award dated 17/12/2005 of the learned Tribunal whereby it had answered the reference under section 10 of the Industrial Disputes Act, 1947 (h ereafter referred to as the Act) in favour of the concerned canteen boys and dir ected it to regularise their services as sub-staff of the Bank from the dates of their respective appointments and accord appropriate pay scales therefrom. The respondent association claims to be comprised of canteen boys who are engaged as the staff of the canteens of the Bank in different branches. Some members are a lso engaged from the year 1984. The association had earlier instituted C.R. 4509 /1994 in this Court seeking an appropriate writ for absorption of its members as regular employees of their Bank from the dates of their initial appointment and sanction of regular pay scale with all allowances reckonable therefrom. The cla im was resisted by the appellant Bank. By the judgment and order dated 23/2/1999 , the writ petition was allowed whereafter WA 363/1999 was preferred by the appe llant Bank and a Division Bench of this Court by its decision dated 5/12/2001 in terfered with the determination of the learned Single Judge and permitted the ap pellant Bank to submit the pleadings of the case before the appropriate departme nt of the Central Government for reference of the dispute for adjudication under the Act. A time frame was also fixed for the various stages of the exercise to be undertaken accordingly. The Appellant Bank having complied with the said dire ctions, the Ministry of Labour, Government of India, vide its notification No. 1 7/7/89-B.O.III(ii) dated 28/8/1990 referred the industrial dispute on the above issue between the parties to the learned Industrial Tribunal, Guwahati, which ac cordingly was registered as Reference No. 5(c) of 2002, the terms of reference b eing as hereunder:- (1) Whether the claim of Central Bank Canteen Boys Association for regularis ation of Shri Akhil Barman and 23 others (as per list attached) in service of th e Central Bank of India in sub-staff cadre as also payment of appropriate scale of pay from the date of their initial appointment is justified and legal? If not , what relief the members of the Association concerned are entitled to? 4. On receipt of the notice of the reference, the parties entered a ppearance and submitted their pleadings. They also adduced oral and documentary evidence whereafter the referred issues were decided in favour of the respondent association. As it (respondent association) has not offered its pleadings in th e writ proceeding, it would be essential to synopsise the recorded contentions o f the parties as scripted in their written statement in the reference proceeding s. 5. According to the respondent association, it is a Union registere d under the Trade Union Act, 1926. While espousing the cause of 24 canteen staff /boys engaged in various branches of the Bank through out the North Eastern Regi on of the country, over a number of years between 1984 and 1993, it asserted tha t these canteens had been set up by the Bank as a measure of staff welfare and d irected and supervised by the Canteen Committees set up by it (Bank). These Comm ittees are all manned by officers working in different branches and are responsi ble for the administrative control thereof. It maintained that the management of the branches with the approval of the higher authorities have complete and tota l control over the canteens and the workers thereof with regard to their recruit ment/termination, payment of salary etc. and that the duration of the services t o be rendered by them extend beyond banking hours. While contending that its mem bers are being paid salary ranging from Rs. 350/- to Rs. 550/- per month dependi ng on staff strength of a particular branch of the Bank, the Association asserte d that the same was being paid by the respective Canteen Committees to be subseq uently reimbursed by the Bank by way of subsidy. It also contended that the cant eens were also being provided with money to purchase utensils and meet other rel ated expenses besides providing space, electricity etc. It however conceded abse nce of any rules governing the service conditions of the canteen boys relating r ecruitment, termination etc. therefore exposing them to want of security of tenu re of services with the risk of being dismissed or thrown out on flimsy pretexts . Lack of service benefits like regular scale of pay, leave, medical allowances etc. enjoyed by regular employees are also casualties for the said reason for th e canteen staff/boys, it pleaded. The association further stated that its member s in addition to the duties in the canteen are required to look after the needs of the employees of the respective branches of the Bank more particularly cleani ng job and conservancy services from time to time for which they are remunerated on daily wage basis with supporting vouchers as the testament thereto. It cited as well the instance of the canteen boys of the erstwhile Purbanchal Bank Limit ed, which has since been amalgamated with the Central Bank of India ensuing thei r absorption as regular sub-staff of the appellant Bank. According to the associ ation, prior to such amalgamation, the canteen boys of the erstwhile Purbanchal Bank were also paid salaries through the Canteen Committees thereof. Reference w as also made by the appellant Bank circular No. 98:91:022 dated 12/3/1991 as wel l as that of Ministry of Finance, Government of India, as the controlling author ity of all nationalised banks seeking to treat the staff of the non-statutory ca nteens as Central Government employees with all incidental benefits of the regul ar staff. 6. In controversion, the appellant Bank while dismissing the claim of the Association pleaded that it was under no obligation to provide any cantee n service to its staff and, therefore, no question of its supervision and contro l of the canteens in its different branches in the Northeastern Region did arise . It averred that these canteens are run by canteen committees, the members wher eof are from its staff. While admitting that the affairs of the canteens are bei ng managed by such canteen committees and that the 24 canteen boys/staff concern ed had been engaged by them, the appellant Bank categorically asserted that it h ad no connection whatsoever with the canteens or their affairs. It also stated a bout its lack of authority to take any disciplinary action or direct any canteen boy to do a particular work in the day to day administration of the affairs of the Bank. It clarified that it had no statutory obligation to run such canteens. According to it, the canteen committees were the sole authority to terminate th e services of the canteen boys and that therefore they could by no means be cons trued to be the employees of the Bank. While disclosing that the canteen committ ees pay the salaries of the canteen boys/staff, the appellant Bank asserted that the canteens are not constituents of its establishment. It further avowed that the concerned canteen boys/staff had been engaged by committees on terms and con ditions fixed by the canteen committees and not by the Bank. It also maintained that persons claiming equal status with that of sub-staff ought to possess minim um requisite qualification as prescribed by its Rules/Regulations. It, however, admitted to provide certain subsidy for the purpose of running the canteen but i nsisted that the expenditure towards salary of the canteen boys made by the cant een committees is not reimbursed by it. It also averred that the concerned cante en boys/staff did not discharge any duty similar to that of the sub-staff of the Bank. It added that recruitment to its service is governed by its service rules and as the posts inter alia of the sub-staff thereof are in public employment, it is impermissible for it to deviate from the norms prescribed therefor. 7. In course of the proceedings, in support of its pleaded averment s, the appellant Bank examined two witnesses namely Shri Utpal Baruah, Manager ( P), Central Bank of India, Guwahati (MW1) and Shri Jaminimohan Rajbangshi, Peon, Central Bank of India, Bhangagarh (MW2). The respondent Association also adduce d evidence of Shri Golak Ch. Das (WW1) and Shri Khanindra Kr. Sarma (WW2). The u ltimate conclusion of the learned Tribunal, as the impugned award reveals, is fo unded on the following determinations:- 1. The canteens were established in the different branches of the Bank as a part of welfare scheme and inconformity with its policy decision. 2. The Bank provided all the facilities to run such canteens. 3. The Bank formed some committees of its employees for appropriate functio ning of the canteens. 4. Outsiders were not allowed to avail these facilities of the canteens. 5. The Banks subsidised the facilities of the canteens. 6. The bank thus has obligation to provide a canteen for the convenience of its employees though not statutory. 7. The canteens thus constitute an integral part of the establishment of th e Bank. The following operative direction was thus issued:- Considering the materials available before me, I am constrained to hold that th e claim of the canteen Boys’ Association for regularization of their services as sub-staff is justified. The management is directed to regularize the services o f the canteen boys from the date of their respective appointments and to pay the m appropriate pay scales from the dates of their regularization. The reference i s answered accordingly. 8. Mr. Phukan has insistently argued that Bank being not under any statutory obligation or otherwise to establish any canteen and conduct the same, in the attendant facts and circumstances, no relationship of master and servant exists between the parties and that therefore the respondent association’s clai m for regularisation of the services of the concerned canteen boys/staff is whol ly unsustainable in law. There being no supervision over the said canteens by th e Bank or any disciplinary control over the concerned canteen boys/staff, in the face of its Rules and Regulations prescribing the mode of recruitment and the c onditions of services, the directions in the impugned award are patently illegal and are liable to be adjudged nonest, he maintained. Mr. Phukan reiterated that the concerned canteen boys/staff had been appointed by the respective canteen c ommittees and not by the Bank and that it being wholly bereft of any control ove r them, could not have been directed to accommodate them in the regular staff in supercession of its Rules/Regulations governing recruitment thereto. The learne d Sr. Counsel while maintaining that the claim as made by the respondent associa tion when judged in the backdrop of facts is wholly untenable and that the impug ned award if implemented would not only result in total dislocation in the organ isational set up but lead to a slew of unwanted litigation also rejected the ana logy of the canteen boys/staff of the erstwhile Purbanchal Bank pleading that th e judgment and order dated 8/7/1993 passed in WA 24/93 and WA 29/93 sustaining t heir claim are on materially different considerations. The learned Sr. Counsel s ought to endorse his contentions by drawing sustenance from the decision of the Apex Court in State of Karnataka versus KGSD Canteen Employees Welfare Associati on, (2006) 1 SCC 567 and an unreported judgment and order dated 21/8/2007 render ed by it in Appeal (Civil) 1587/2005, Canteen Mazdoor Sabha Metallurgical Engg. Consultants (I) Ltd. and others. 9. In reply Mr. Chakraborty contended that the findings recorded in the award being those of facts based on an appropriate evaluation of the materi als on record, this Court in the exercise of its power of judicial review would not lightly displace the same. The learned Counsel inter alia referred to certai n documents namely exhibits D, G, F, K, L and M to substantiate the conclusions of the learned Tribunal. He contended that the Banks Rules/Regulations pertainin g to recruitment and conditions of service of its sub-staff can by no means be a n impediment to the implementation of the directions contained in the award in p roclamation of the right of the concerned canteen boys/staff to the reliefs acco rded thereby. He placed reliance on the following decisions of the Apex Court to reinforce his arguments. Parimal Chandra Raha versus Life Insurance Corporation of India, AIR 1995 SC 1666, Indian Overseas Bank versus I.O.B. Staff Canteen Wo rkers Union, AIR 2000 SC 1508, G.B. Pant University of Agriculture and Technolog y, Patnagar, versus State of Uttar Pradesh, AIR 2000 SC 2695, State of Karnataka versus KGSD Canteen Employees Welfare Association, (2006) 1 SCC 567. 10. The pleaded facts and the documents as available as well as the records of the reference proceedings have been perused to appropriately marshal the rival submissions. The moot issue that would decide the course of the adjudi cation pertains to the obligation, if any, of the respondent Bank to provide a c anteen in its branches as a welfare measure for its staff and employees as an in tegral segment of the organisational paradigm. The parties are one that no statu tory obligation is cast on it. Whereas the respondent Bank denies any obligation to set up a canteen with the incidental logistics and ensure the consequential facilities exclusively for its staff and employees either as a welfare measure o r as a condition of their services, the respondent association contends to the c ontrary. Two broadly admitted features, however, surface from the otherwise cont entious fronts which can be paraphrased thus:- (i) The canteens are administered by respective Canteen Committees constitut ed by the members of the staff of the Bank. (ii) The Bank provides subsidy for running of the canteens. 11. The documentary evidence adduced by the respondent association i n the reference proceedings deserves reference at this stage. Exhibit G is a not e dated 17/5/1994 put up by the ZSTC, Guwahati, before the Deputy General Manage r of the respondent Bank pertaining to canteen facilities thereat. The note ment ion that with a view to provide good quality refreshments and to overcome the pr oblems faced by the Centre, a decision had been taken to establish a separate ca nteen to cater to the needs thereof. Reference of disassociation of Bhangagarh B ranch with the C.I.A. Office staff due to the establishment of their own staff c anteen was made. The note mentioned about an interaction with the Marketing Mana ger (LPG), IOC, Guwahati, to award one LPG connection on priority basis for the proposed canteen. Sanction was, therefore, sought for from the said higher autho rity for the said connection. 12. The evidence on record establish that such a connection was ther eafter allotted following which official communications were exchanged between t he Branch Manager, Dispur Branch, the Area Manager, IOC (MD), and the Deputy Gen eral Manager, Central Bank of India, Zonal Office, Guwahati, on 24/6/1994 and 8/ 8/1994 (Exhibit D). That the LPG connection so sanctioned was for the staff cant een is evident therefrom. Exhibit F is a document in the letterhead of the respo ndent bank whereby requisition for crockeries and utensils and pressure cookers as illustrated therein was made. 13. The office circular No. B.I.D. 16/152-c dated 9/11/1968 issued b y the respondent Bank to all its controlling branches in the country (Exhibit L) reveals a decision to allow certain facilities for establishing a staff canteen at branches established at State Headquarters and/or at Group Headquarters wher e there was a suitable lunch room already in existence. Articles namely cutlery, crockery, furniture and facilities like cooking gas, electricity, water were ac cordingly directed thereby to be provided. The canteen managing committees were permitted to employ cooks or service bearer at the said canteens. The Branches w ere authorised to agree for reimbursement of the wages payable to them. Thereby certain informations with regard to the number of full time staff engaged, artic les already supplied, subsidy accorded, infrastructural details vis-à-vis existi ng canteens were also sought for. The Branches were instructed to forward the li st of crockeries and other essentials to the Establishment/Departments of the He ad Offices. Exhibit J, Exhibit M, Exhibit O, Exhibit Q are the various communica tions from the concerned authorities of the respondent Bank relating to enhancem ent in canteen subsidy from time to time. 14. These documents inter alia establish the decision of the respond ent Bank to promote the facilities for establishing staff canteens at its branch es and its willingness to arrange the functional essentials therefor apart from granting subsidy to reimburse the accruing expenses for the administration of th e same. That from time to time the canteen subsidy has been enhanced to keep pac e with the rise in the service charges is also evident from the relevant documen ts as aforementioned. The respondent association’s assertions that the canteen h ours coincide with the Bank timings and that no outsider is allowed to avail the facilities of the canteen have also not been seriously disputed by the Bank. Th e respondent association has further endeavoured to prove that the respondent Ba nk provides electricity and water connection to the canteens. Exhibit L, the Off ice circular dated 9/11/1968 also indicates the permissibility for the Branches to reimburse the wages of the cooks and service bearers to be employed by the ca nteen management committee. It is only if all these cognate factors constitute e stablishment of the canteens at the various branches of the respondent bank all over the country as well as operation thereof by it for all intents and purposes that the said canteens can assuredly be said to be a constituent unit of the re spondent Bank with all ensuing rights and obligations vis-à-vis the canteen boys /staff. In contra distinction, however, if these sum upto steps by the responden t Bank only to promote the facilities of canteen services at its branches, the s ame deduction would not necessarily follow. As several such common determinants for over the years have engaged the attention of various courts and more importa ntly, the Apex Court, it would be expedient to advert to the authorities cited a t the Bar. 15. In MMR Khan and others versus Union of India and others, 1990 (S upp) SCC 191, the Apex Court was seized inter alia with the issue of classificat ion made between the employees of the three categories of canteens run by differ ent railway establishment of the country namely (i) statutory canteens required to be provided compulsorily under the Factories Act, 1948, (ii) non-statutory r ecognised canteens and (iii) non-statutory non-recognised canteens. Their Lordsh ips though declared that no distinction could be made between the employees of s tatutory canteens and non-statutory recognised canteens required to be establish ed under para 2831 of the Railway Establishment Manual, adjudged the employees o f the non-statutory non-recognised canteens to be disentitled to claim the statu s of Railway Service. It was held that these canteens were run more or less on a dhoc basis with Railway Administration having no control on the canteens. That t here is no record of these canteens nor of the contractors or of the workers who work therein was also noted. 16. The contextual facts in State Bank of India and others versus St ate Bank of India Canteen Employees’ Union (Bengal Circle) and others, (2000) 5 SCC 531, disclosed that in terms of two agreements between the Management of the State Bank of India and the Staff Federation, the former had agreed to start st aff canteens only at its branches having a minimum staff strength of 150 and 100 respectively. The Calcutta High Court, however, held that even the other cantee n workers were entitled to be absorbed as employees of the Bank. Being aggrieved , the Bank filed appeals against the decision. Though the parties agreed that th ere was no statutory obligation on the Bank to provide a canteen to its employee s, the Employees Union contended that in Shastry Award it did have so. To endors e this stand reliance was also placed on the handbook of staff welfare activitie s prepared by the Bank. Contending that the local implementation committees, whi ch used to run the canteens were composed of the employees of the Bank and were under its direct control, the union alleged discrimination, if the other canteen workers beyond the purview of the two agreements were left out. 17. The Apex Court, on an interpretation of the relevant paragraph o f the Shastry Award decided against the obligation on the Bank to provide cantee ns at its branches. It was held that the handbook of the staff welfare activitie s prepared by the Bank only ear marked the fund for providing amenities to the s taff and carrying out welfare activities for the employees of the Bank as a whol e which included amongst others clause (iv) qua promotion of canteen facilities. 18. The Apex Court noticed the absence of any requirement of the Ban k to establish canteens or provide canteen facilities in consonance with the wel fare scheme so envisaged which contemplated grant of subsidy for various welfare activities depending upon the requirement in various branches. Their Lordships thus concluded in the facts of the case that there was no obligation statutory o r otherwise of the Bank to run the canteens and the Welfare scheme only provided for grant of subsidy for promoting running of the canteen. It also noticed that the canteen workers were not employed by the Bank and that it did neither super vise nor control the working of the canteen or the employees appointed by the lo cal implementing committee. Their Lordships held the view that even if the privi lege of providing canteen facilities to the employees could be presumed to exist , the same could not be equated to the running of the canteen by the Bank. The d istinction between promotion and providing of canteen facilitates was underlin ed. It was thus enunciated that the provision in the welfare scheme for promotio n of canteen facilities did not signify establishment of a canteen by the Bank s o much so to cast on it any obligation statutory or otherwise to run the same as an integral component of its establishment. 19. The decision in Parimal Chandra Raha, supra, involved a claim of 42 workmen working in the canteens of the Life Insurance Corporation of India i n Calcutta seeking a declaration of their status as regular employees thereof an d minimum salary paid to the equivalent staff by applying the principle of ’equa