Case: Parimal Chandra Raha &amp; Ors Vs. Life Insurance Corporation Of India &amp; Ors

2. In para 2 of the writ petition, the appellants have averred that they are canteen employees of the Corporation and working in the canteens managed by the Corporation. In par 3, they have stated that they are employed in the canteens of the Corporation and some of them for decades, since the inception of the Corporation and others for a minimum of seven years, and are holding the designations variously of Canteen General Manager, CanteenKitchen Clerk, Canteen Clerk, Halwai, Assistant Halwai, Cook, Bearer,and Sweepter etc. In para 4 they have specified the four departmental canteens of the Corporation where they have been working. In para 5, they have averred there that they paid at the rate much below the rate at which canteen employees working under different Government departmental canteens including those run by statutory Corporations and Railways are paid. They have also stated there that the employees of the canteens in different Government offices and Railways throughout the country are enjoying at least thewhich are enjoyed by the peons of the respective offices. In para 6, they have given the emoluments which theemployees of the Corporation get which are between Rs. 700/er month against the wages they get as canteen employees ranging from Rs. 100/to Rs. 200/per month. In paras 7 and 16 of the writ petition, to quote them verbatim, it is then averred as follows :"Your petitioners state that the employees and the staffs of the respondent No. 1 at all its establishments are provided with facilities of canteen by the respondents for more than few decades and as such providing of canteen facilities forms a condition of service of the employees and staffs of the respondent no. 1. Your petitioners state that by usage and customary benefits, canteen facilities has become the condition of service of the employees of the respondent no. 1 and as such running of the canteen is incidental to the running business and/or industry of the Life Insurance Corporation of India [Respondent No. 2].x x x x xYour petitioners state that they are engaged in the work of the canteen which is incidentally connected with the main industry of the respondent no. 1 and as such they are workmen working under the respondent no. 1" * 3. It is against the background of the said averments in the main body of the writ petition that in paragraph 18 thereof they have averred that the respondentCorporation being an instrumentality of the State and being the State within the meaning of Article 12 of the Constitution, cannot deny them equalwith other canteen employees of the Government departments/Railways and other statutory Corporations or take a stand or policy different from that followed by the Government departments, Railways and other instrumentalities of the State. With regard toof the canteen employees, they have stated there that till date the respondentCorporation has not framed anyfor the canteen employees and as such have acted in a discriminatory manner violating Article 4 of the Constitution. Thereafter, in ground No. 2 of the petition they have stated that the canteen workers of thebeing engaged in operation incidentally connected with the industry carried on by the respondents, the respondents cannot deny them the minimum wages given to their employees. In ground No. 3, it is alleged that the canteen facility being condition of service of the staff and employees of the respondentCorporation as per usage and custom, the appellants, being canteen employees and engaged in operation incidentally connected with the industry carried on by the respondent, "automatically become the direct employees under the respondents and as such they cannot be discriminated against and denied the minimum wages that is prevalent in the Life Insurance Corporation. In ground No. 4, they have stated that the appellants are working under the respondents through the agencies, and being engaged in work incidentally connected with the industry carried on by the Corporation, they are entitled to get the pay that is admissible to regular employees of the Corporation. It is with these averments in the main body of the petition and the grounds that the appellants have in prayer [b] of the petition, claimed the relief of the insurance of the writ of mandamus commanding the respondentCorporation to comply with the policy of "equal pay for equal work" and pay them the minimum salary that is enjoyed by the staff of the Corporation and also to follow the policy that is prevalent for canteen workers in other Government departments, Railways and statutory Corporations. It is thus clear from the writ petition filed by the appellants before he High Court that they have prayed for the relief of minimum wages paid to the employees of the respondentCorporation on the ground that they are the regular employees of the Corporation. In other words, it is implicit in the said relief claimed by them that they are to be deemed to be the regular employees of the Corporation and paid the minimum salary that is paid to its other regular employees.4. The case of the respondentCorporation before the learned Single Judge of the High Court as made out in their counter to the writ petition was that the canteens did not belong to it nor were they run by it. The Corporation only gave its employees the facilities to run the canteens. The canteens were run during different periods either by theof the staff or their cooperative society through the contractors, and the appellants were engaged by the contractors or the cooperative society. It has no connection much less contract of employment with the appellants. Nor does it have any, control over their working conditions of service or the termination of their services. They are, therefore, not the employees of the Corporation and cannot be deemed to be so. Hence they are not entitled to the relief claimed by them.5. The learned Single Judge by his decision of 27th September 1989 allowed the writ petition and directed theto implement the policy of equal pay for equal as is enjoyed by the regular staff of the Corporation or such pay as is enjoyed by regular canteen workers in the other Government establishment or public undertakings. The learned Judge also directed that the appellants shall be treated as direct workers under the Corporation and shall be given all service benefits accordingly.6. Against the said decision of the learned Single Judge, the respondentCorporation preferred a Letters Patent Appeal before the Division Bench of the High Court which the impugned decision dated 10th October 1991, allowed the appeal, set aside the decision of the learned Single Judge and dismissed the appellants writ petition. It is this decision of the Division Bench which is under challenge in the present appeal.

Reasoning:
The relief of minimum wages paid to the other regular employees of the Corporation on the basis of the principle of equal pay for equal work is thus claimed on the ground that they are also the regular employees of the Corporation. Thus, the relief claimed includes in it the basis of the relief, viz., their status as the regular employees of the Corporation. It is necessary to restate here the law regarding the interpretation of the pleadings. They have to be read as a whole and construed accordingly. Thus construed, the relief claimed leaves no doubt that it is based on the claim for the status of the regular employees of the Corporation. We therefore, find no substance in the preliminary objection.In the face of the aforesaid facts, it is difficult to support the findings of the Division Bench that (a) the canteen is being run by a committee orcooperative society of thestaff members of the Corporation (b) the Corporation only agreed to provide space to house the canteen and certain chairs and tables for the use of its staff members, (c) an independent contractor has been appointed to run the canteen (d) and since no letter of appointment has ever bene issued by the Corporation and no attendance register is maintained and the salary of the canteen workers is being paid by the independent contractor and not from the funds of the Corporation, there is no employer and employee relationship between the Corporation and the appellants.31. The facts on record on the other hand, show in unmistakable terms that canteen services have been provided to the employees of the Corporation for a long time and it is the Corporation which has been from time to time, taking steps to provide the said services. The canteen committees, thecooperative society of theemployees and the contractors have only been acting for and on behalf of the Corporation and its agencies to provide the said services. The Corporation has been taking active interest even in organising the canteen committees. It is further the Corporation which has bene appointing the contractors to run the canteens and entering into agreements with them for the purpose. The terms of the contract further show that they are in the nature of directions to the contractor about the manner in which the canteen should be run and the canteen services should be rendered to the employees. Both the appointment of the contractor and the tenure of the contract is as per the stipulations made by the Corporation in the agreement. Even the prices of the items served the place where they should be cooked, the hours during which and the place where they should be served, are dictated by the Corporation. The Corporation has also reserved the right to modify the terms of the contract unilaterally and the contractor has no say in the matter. Further, the record shows that almost all the workers of the canteen like the appellants have been working in the canteen continuously for a long time whatever the mechanism employed by the Corporation to supervise and control the working of the canteen. Although the supervising and managing body of the canteen has changed hands from time to time, the workers have remained constant. This is apart from the fact that the infrastructure for running the canteen, viz., the premises, furniture, electricity, water etc. is supplied by the Corporation to the managing agency for running the canteen. Further, it cannot be disputed that the canteen service is essential for the efficient working of the employees and of the offices of the Corporation. In fact, by controlling the hours during which the counter and floor service will be made available to the employees by the canteen, the Corporation has also tried to avoid the waste of time which would otherwise be the result if the employees have to go outside the offices in search of such services. The service is available to all the employees in the premise of the office itself and continuously since inception of the Corporation, as pointed out earlier. The employees of the Corporation have all along been making the complaints about the poor or inadequate service rendered by the canteen to them, only to the Corporation and the Corporation has been taking steps to remedy the defects in the canteen service. Further, whenever there was a temporary breakdown in the canteen service, on account of the agitation or of strike by the canteen workers, it is the Corporation which has been taking active interest in getting the dispute resolved and the canteen workers have also looked upon the Corporation as their real employer and joined it as a party of the industrial dispute raised by them. In the circumstances, we are of the view that the canteen has become a part of the establishment of the Corporation. The canteen committees, thecooperative society of theemployees and the contractors engaged from tie to time are in reality the agencies of the Corporation and are, only a veil between the Corporation and the canteen workers. We have, therefore, no hesitation in coming to the conclusion that the canteen workers are in fact the employees of theview of our finding that the appellants who are the canteen workers in the four offices of the Corporation in Calcutta are entitled to be the employees of the Corporation, the appellants are certainly entitled to the first relief they have claimed. The question however, is to what service conditions they would be entitled. They have prayed for the minimum salary paid to the employees of the Corporation which necessarily means the minimum salary of the lowest paid employees of the Corporation, i.e., of class IV employees. There would be no difficulty in directing the payment to them of the minimum of the salary paid to the Class IV employees of the Corporation. However, there his distinction between and present service conditions of the appellants and the other Class IV employees of the Corporation. For example, the appellants get free food, and free tea. Their hours of service may also differ. There are also different categories of canteen workers such as General Manager, CanteenKitchen Clerk, Canteen clerk, Halwai, Assistant Halwai, Cook, Bearer,Sweeper etc. It is not possible for the Court to evaluate the work done by each of the categories. Hence different service conditions will have to be prescribed for the different appellants. The Corporation may have, therefore, to prescribe appropriate service conditions for the canteen workers.33. Pending the prescription of such service conditions, the Corporation should pay to all the appellants the minimum of the salary presently paid to its Class IV employees taking into consideration and making allowance for the special facilities, if any, available to them and also their special working conditions. In addition, the Corporation should also give them the benefit of the other service conditions available to its Class IVinto consideration the relevant facts and circumstances on record we are of the view that they should be deemed to have become the regular employees of the Corporation from the date of the filing of the writ petition before the High Court and should, therefore, be paid the arrears of salary and other monetary benefits, if any, from the said date after adjusting the salary and monetary benefits that they may have received. The years of continuous service put in by them even prior to the aforesaid date as canteen workers should, however, be taken into account for the purpose of calculating their retiral benefits.35. We, however, make it clear that the above direction to treat the appellants as the regular employees of the Corporation will be subject to two conditions, viz., (a) that they were above the minimum and below the maximum age limit and medically fit as per] the regulations of the Corporation on the date of the filing of the writ petition and (b) that on the date of the filing of the writ petition before the High Court, they had put in a minimum of three years continuous service as canteen workers in the canteens in question. For the purposes of calculating the said three years qualifying service and the retiral benefits, the service prior to the attainment of the minimum qualifying are under the Corporations regulations shall be ignored.