Bombay High Court
Contract Laghu Udyog Kamgar Union vs State Of Maharashtra And Ors. on 23 February, 1994
Equivalent citations: 1995(1)BOMCR412
JUDGMENT B.P. Saraf, J.
1. By this writ petition, Contract Laghu Udyog Kamgar Union ("the Union"), as representative of the majority of the workmen working in the mess of the Government Colleges Hostels, has challenged the order of the Industrial Court dated 22 December, 1989 dismissing its complaint holding, inter alia, that it could not prove the relationship of employee-employer between the mess workers and the State of Maharashtra. The case of the petitioner Union is that the messes in the Government College Hostels are part of the college hostels and the workmen working therein are employees of the hostels and therefore employees of the State of Maharashtra. The petitioner Union, therefore, claims that the workmen concerned are entitled to be treated at par with similarly situated workmen in Government service. The alternative contention of the petitioner is that in any event, the workmen concerned are entitled to get minimum wages fixed for the category of workmen concerned under the Minimum Wages Act which also has been denied to them. The Government of Maharashtra does not accept the above claim of the workmen. According to it the workmen concerned are not its employees - they are employees of Students' Representative Council which manages the hostel and looks after the administration thereof. The petitioner has, therefore, arrayed the Superintendent Government College Hostel as well as the State of Maharashtra as respondents in this writ petition.
2. The petitioner Union filed a complaint with the Industrial Court Maharashtra alleging unfair labour practices under items 1 (a), 4 (a), 4 (f) of Schedule II and 1 (a), (b), (c), (d) and (f) and 6 of Schedule IV to the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act which was numbered as Complaint (ULP) No. 504 of 1988. The said complaint was dismissed by the Industrial Court by its order dated 22nd December 1988. It was held that the Union could not prove employer-employee relationship between the mess workers and the State of Maharashtra. In regard to the non-payment of minimum wages, the Industrial Court observed that no material was placed before it to enable it to decide the said issue. It therefore did not decide the same. The petitioner Union has filed the present writ petition to challenge the above order of the Industrial Court.
Counsel for the petitioner Mr. Singhvi submits that the Industrial Court committed manifest error of law in holding that the workmen employed in the mess of the Government Colleges Hostels are not employees of the State Government. According to him, a proper consideration of the facts and circumstances of the case, the Government Resolution governing the control and management of the said hostel and the actual manner of management thereof, clearly goes to show that the petitioners are the employees of the State Government. So far as the minimum wages is concerned, counsel submits that the Industrial Court was not justified in not deciding the issue on the ground of failure of the petitioners to place relevant material on record inasmuch as the rate of minimum wages applicable to workmen employed in the canteens has been fixed under the Minimum Wages Act by a notification of the appropriate Government which would have been perused by it to decide whether the workmen were covered by the said notification or not. Learned counsel for the State of Maharashtra, on the other hand, submits that on the facts and in the circumstances of the case the Industrial Court was correct in arriving at a finding that the workmen concerned were not employees of the Government. He also submits that the Industrial Court was justified in declining to decide the controversy in regard to the claim of minimum wages as it is for the Union concerned to satisfy the Court by producing the relevant notification that the workmen concerned were covered by it.
3. I have considered the rival submissions. The controversy is in a narrow compass. Two points arise for consideration. First, whether the workmen employed in the mess of the Government Colleges Hostel are employees of the Government or they are employees of a committee constituted of students year to year designated as "Students' Representative Council". Second, if it is held that the workmen concerned are not employees of the Government then, the point that arises is whether they are entitled to minimum wages fixed by the appropriate Government for the work of the type done by them. It may be pertinent to mention that the notification in question refers to hostels, canteens, restaurants etc. It does not specifically speak of "mess". The question is whether a mess in the Government Colleges Hostel will fall in the above category or not. However, before proceedings to deal with the legal issues arising in this case, I find it expedient to set out briefly the facts of the case. The Government of Maharashtra runs a number of hostels for the students. The hostels are managed and supervised by a Superintendent appointed by the Government. The hostels also have a mess where the students residing in these hostels can take their meals. According to the petitioners the mess is controlled by the Superintendent of the Government Colleges Hostel, who is a Government employee, on behalf of the Government of Maharashtra with the help and assistance of the Students' Representative Council. According to them the Students' Representative Council which is a body of students elected year to year does not run and control the mess. In fact and in reality, the mess is run and controlled by the Government through the Hostel Superintendent. The Students' Representative Council is only to assist the Superintendent in the supervision, management and control thereof. In that view of the matter the submission of the petitioner is that the Government is the employer - not the Students' Representative Council which has even no permanent existence as such. The further contention of the petitioner is that the workmen employed in the mess are working there for a number of years ranging between 28 to 9 years. According to the petitioners, the hostel mess is an integral part of the hostel and is inseparable from the hostel and as such along with all the activities of the hostel the activities of the mess also are controlled and managed by the Superintendent of the hostel. The petitioners have filed a list of the employees along with their designations and year of joining service. It may be useful to reproduce the same.
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Name Designation Year of No. of
joining Years
service of Service
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1. Sudhakar Bhargav Mahan Cook 1965 23
2. Gopal Dhondu Navghare Sweeper 1966 22
3. Kashinath Bama Tamboli Assistant Cook 1967 21
4. Gajanan Mahadeo Mokel Waiter 1968 20
5. Mahadeo Tukaram Mokal Assistant Cook 1969 19
6. Tukaram Hiraji Thakur Cook 1977 11
7. Laxman Motiram Mokal Waiter 1978 10
8. Pandurang B. Tamboli Supervisor 1978 10
9. Shankar Babaji Misal Supervisor 1978 10
10. Sakharam Pandurang Tandel Assistant Cook 1979 9
11. Madhukar Govind Sigwan Assistant Cook 1981 7
12. Kashinath Mahadeo Jada Assistant Cook 1981 7
13. Ramchandra Ganpat Gorivle Waiter 1983 5
14. Vithal Shivram Gorivle Waiter 1983 5
15. Bhikaj Jaku Mhatre Waiter 1982 6
16. Shripat Bhiku Kavankar Waiter 1984 4
17. Khandu Nama Mokal Waiter 1985 3
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The further submission of the petitioner is that all the furnitures, utensils, cooking materials including the premises are provided for the mess by the State of Maharashtra free of charge. It is also pointed out that all such utensils and materials bear the insignia "Government Colleges Hostel". The water and electricity charges in respect of the power consumed in the mess are paid by the Government. The messing charges that each boarder of the hostel has to contribute also decided in advance by the Government. The Students' Representative Council has no say in the matter. It is also the decision of the Government that messing is compulsory for all the students living in the hostels. The amount that has to be paid towards the meals is fixed by the Government. The mess bills are drawn by the clerks who are employees of the Government. The supervision and control of the mess and purchase of food materials is under the control of the employees of the Government. The maintenance of the furnitures and equipments of the mess is also the responsibility of the Government. The Superintendent of the hostel has laid down detailed rules in regard to the rights and responsibilities of the students relating to mess facilities as also the duties of the employees engaged in the mess service. The accounts of the purchase of food material are approved by the Superintendent of the hostel who is in over all charge of the mess. The Superintendent of the hostel is assisted by the Assistant Superintendent of the hostel who is a Government employee. Both of them reside in the hostel. The bank account in the State Bank of India is operated by the Superintendent. The Students' Representative Council has no authority or power to approve or sanction any amount in respect of the mess and to operate the bank account. The accounts of mess are maintained by the Superintendent of the hostel and consolidated with those of the hostels. A consolidated statement is prepared every year by the Superintendent and submitted to the State of Maharashtra. According to the petitioner, all these factors taken together clearly go to show that the mess is really being run by the Government of Maharashtra through the Superintendent of the hostel who is its employee and it is completely wrong on the part of the State to take the plea that the workmen concerned many of them working in the mess for about twenty-five years as on today are not its employees but employees of the Students' Council which has neither a formal constitution nor composition. It is further stated that the Students' Council is not a formal body of individuals. It is merely a committee of students nominated or elected only with a view to assist the Superintendent in the management and control of the hostel. The State cannot be permitted to take shelter behind the Students' Council to refuse to accept the workmen concerned as its employees.
5. The contention of the State, on the other hand, is that the position as stated by the petitioner Union is not correct. According to learned counsel, the Government has simply provided the premises, furnitures and other materials for the mess which is run exclusively by the students themselves under the control and supervision of a committee composed of themselves. The Superintendent of the hostel, as a head of the institution, merely guides the students in the management of the hostel. He himself neither manages nor supervises nor controls the mess and, as such, it is not correct to say that the State of Maharashtra through the Superintendent of the hostel runs the mess and it is the employer in respect of the workmen employed therein.
6. I have considered the rival submissions. I have also perused the list of workmen submitted by the petitioner along with the years of their appointment. A look at the said list clearly goes to show that the persons working in the said mess are in continuous employment for periods ranging from 28 to 9 years. There can be no two opinions about the fact that the Students' Representative Council, which is constituted year to year from amongst the students of the hostel either by election or selection by the Superintendent, is not a legal entity which can be saddled with any liability in respect of the legal dues of the workmen working in the mess. There are no rules as such governing the working of the Students' Council. There is no material on record to show that the Students' Representative Council is a legal entity having perpetual succession which can sue or be sued in its name. It appears that the Students' Representative Council which is constituted every year is an independent entity and is not a successor of the previous Students' Representative Council in the legal sense of the term. It is not responsible for any of the acts or liabilities of the previous Council. This is also evident from the written statement filed in the Industrial Court on behalf of the Superintendent and State of Maharashtra wherein in para 1 (b) it is, inter alia, stated :
"The Respondent No. 2 herein namely Students' Representative Council is not a trade union, nor society or trust. The Respondent No. 2 is not registered under the Trade Unions Act or Public Societies Act and hence it is not legal entity or a person and hence the above complainant may be dismissed on this ground also."
7. I have also perused the relevant Government Resolution dated 23 August, 1979. The said resolution, so far as it is relevant, reads as under :
"The resident students in the Government Colleges Hostel Bombay were hitherto managing their mess, canteen and other activities themselves and also managing all their accounts with the help and control of their elected representatives.
X X X X X X X X X X X X X X X X X X
3. Owing to the above accounting problems and general sickness on the part of the student-members, the food bills ran high and the hostel residents suffered heavy losses. The students therefore, left and resolved that the entire accounting matter including purchase, keeping day-to-day expenses account, collection of dues etc. be taken over by the Hostel Office and that students be left associated only with the mess and the canteen in an advisory capacity is to fix the menu, to control the quality of the food sold and to do general supervision. They also volunteered to contribute Rs. 100/- per month per mess the amount they paid by way of remuneration to the person doing their account work to meet partly the expenditure on this account with a view therefore to helping the hostel residents in management of their activities considering the size of this hostel (as may as 308 student-inmates) and the ultimate supervisory responsibility being that of the Superintendent in respect of the Mess. Provision Store etc. though they are run by the students on a co-operative basis, it has been decided that over all control of all control of all non-Government accounts should be taken over by the hostel Superintendent and he should maintain them with the assistance of a senior clerk, sanction is accordingly accorded to the creation of a post of senior clerk in the scale of Rs. 335-15-500-20-580-Exn-so-680, in the Government Colleges Hostel, Bombay for managing and maintaining the non-Government accounts pertaining to hostel mess canteen etc. The post should be created from immediate effect and continued till 29.2.1980 in the first instance. The incumbent of the post should be held eligible to draw usual allowances of dearness, house rent and compensatory, local as admissible under the Rules from time to time.
The expenditure involved on this account should be debitable to the budget head "277 - Education E - University and other High Education fact students Hostel (9) maintenance of student hostel" and should not from the sanctioned grants thereunder. An amount of Rs. 300/- per month should be recovered from the students committees as contribution to the expenditure on account of expenditure on pay and allowances of the Senior Clerk as agreed to and credited to the Government Treasury.
This resolution issues with the concurrence of Finance Department vide its un-official reference No. 1961-Exp. - 5179, dated 7.8.79.
By order and in the name of the Governor of Maharashtra."
The above resolution clearly goes to show that at least on and after the date of the above resolution the Government accepted the suggestion of the students that the management and control of the mess should be taken over by the hostel office and the students should be left associated with the mess and the canteen only in an advisory capacity to fix the menu, to control the quality of the goods sold and to do general supervision. It was decided by the Government that the over-all control of the non-Government accounts should be taken over by the Hostel Superintendent including the accounts pertaining to the hostel, canteen, mess etc. To assist the Superintendent, a special post of Senior Clerk was created by the Government. All these facts clearly go to show that in reality, the mess was run, managed and controlled by the Government through its employee, the Hostel Superintendent. The Students' Representative Council merely acts as an advisory body to assist the Superintendent in the management and supervision of the mess. By any reasoning, the Students' Council cannot be held to be the employer.
8. The test that should be applied to determine whether employer-employee relationship existed between the parties came to be considered by the Supreme Court in a number of cases. One of the oft-quoted tests is whether the so-called employer has the right to control and supervise the manner of work done by the workers. As observed by the S. C. in D. C Workers Ltd. v. State of Maharashtra, the prima facie test for the determination of relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work. In other words, the proper test is whether or not the master has the right to control the manner of execution of the work. It was further observed that the nature or extent of control might vary from business to business and is by its very nature incapable of precise definition. It was also indicated that the test of control was not one of universal application and that there were many contracts in which the master could not control the manner in which the work was done.
In Bank Voor Handel en Scheepvaart N. V. v. Slatford 1952 (2) All ER 956 (at p. 973), Denning, L. J. said :
"... the test of being a servant does not rest nowadays on submission to orders. It depends on whether the person is part and parcel of the organisation..."
In the case of Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments AIR 1974 S. C. 39, the Supreme Court discussed the above decisions and various other decisions on the point and observed that the right to control the manner of work is not the exclusive test for determining the relationship of employer and employee. It is also to be considered as to who provides the equipment. Dealing with the tailoring work, it was observed that so far as tailoring is concerned, the fact that sewing machines on which the workers do the work generally belong to the employer is an important consideration for deciding that the relationship is that of master and servant. It was also observed that apart from this when the employer has the right to reject the end product if it does not conform to the instructions of the employer and direct the worker to restitch it, the element of control and supervision is also involved. It was made clear by the Supreme Court in the above case that even the fact that the employee take up the work from other tailoring establishments and do that work in the shop in which they generally attend for work and that they are not obliged to work for the whole day do not militate against their being employees of the proprietor of the shop where they attend for work.
9. Reference may also be made to the decision of the Supreme Court in Kanpur Suraksha Karamchari Union (Regd.) v. Union of India AIR 1988 S. C. 1985. In this case, a question arose whether the workmen working in canteens run by the Defence Industrial Installations as required under section 46 of the Factories Act were Government servants. The Defence Department declined to treat them as Government servants prior to 22 October 1980 on the grounds that (a) prior to that date the canteen workers in Ordinance Factories were under the Canteen Managing Committees constituted as per provisions of section 46 of the Factories Act; (b) the supervision and control of such canteens were exercised by the Canteen Managing Committee consisting of equal number of elected representatives of the factory workers and nominees of the management and the Canteen Managing Committee was the appointing authority of the canteen workers; and (c) that the Canteen Managing Committee was paying the salary to the workers and also controlling the canteens. The Supreme Court repelled the above contention. It was observed that the functions of the Canteen Management Committee were merely advisory. It was appointed by the Manager appointed under section 7 of the Act and the Manager was required to consult the Canteen Managing Committee from time to time as to the quality and quantity of foodstuff served in the canteen, the arrangement of the menu, times of meals in the canteen etc. The food, drink and other items served in the canteen were required to be sold on 'no profit' basis and the prices charged were subject to the approval of the Managing Committee. The accounts pertaining to a canteen in a Government factory might be audited by its departmental Accounts Officers. It was also observed that all the basic requirements of the canteen such as building, utensils, crockery, cutlery, furniture and all other necessary equipment were supplied by the Defence Ministry. Considering all these factors, it was held :
"A canteen is an integral part of the Defence establishment belonging to the Union of India. There cannot be a canteen without sufficient number of workers working in the canteen. They have to be appointed by the occupier. Otherwise he would not be fully comply with section 46 of the Act. The Managing Committee cannot be the employer of those workmen in the true sense of the term. The Managing Committee constituted under section 46 of the Act which is not an incorporated body and whose financial position is uncertain cannot be considered to be the employer who has to bear the legal responsibilities under the several labour laws in force in India. We may, however, add that in the case of a canteen run by a contractor or a co-operative society or some other body the position may be different.... We find it, therefore, difficult to hold that the employees working in such canteens were not employees of the factories in which the canteen had been established.
10. The ratio of the above decision clearly applies to the facts of the present case. Here also it is evident from the Government resolution dated 23 August, 1979 that at least on and from that date the Government of Maharashtra specifically took over the management and control of the mess even if it had hitherto been run and managed by the Students' Representative Council. Thereafter, the Students' Council is functioning only in an advisory capacity and is in no way in charge of the management.
11. I am, therefore, of the clear opinion that considering the totality of the facts and circumstances of the present case, it would not be correct to say that the State of Maharashtra is not the employer of the concerned workmen working in the mess attached to the hostels. All such workmen will, therefore, have to be treated as Government employees on and from 23 August 1979 and paid wages and other allowances accordingly.
12. My attention was also drawn to the decision of the Kerala High Court in Principal, Thrissur Government Engineering College v. Sreenivasan P. R. 1993 LIC 1449. In this case also the controversy pertained to the employees in hostels attached to Government Colleges. A claim was made for minimum wages fixed by the notification issued by the State Government under the Minimum Wages Act. It was held by the Kerala High Court that since the employees were working in a Government hostel controlled and administered by the principal who in turn got his authority from the Government, the employees were entitled to minimum wages as fixed by the notification under the Minimum Wages Act and that minimum wages would have to be paid by the person in charge of the hostel, i.e., the principal of the College to such employees. In view of the above finding the Kerala High Court did not decide whether the employees concerned were in Government service or not.
13. In view of the conclusion arrived at by me in the foregoing paragraphs that the workmen concurred are employees of the Government of Maharashtra, it is not necessary to go into the alternative contention of the petitioners that they are entitled to minimum wages because, as Government employees, they would be entitled to all the benefits that are available to other similarly situated Government employees.
14. In the result, this writ petition is allowed to the extent indicated above. Rule is made absolute in the above terms. Under the facts and circumstances of the case there shall be no order as to costs.
15. Certified copy expedited.