Andhra HC (Pre-Telangana)
Bharat Heavy Plates & Vessels Ltd. vs B.H.P.V. Canteen Employees Union And ... on 17 January, 1997
Equivalent citations: 1997(2)ALD319, 1997(1)ALT430, (1997)ILLJ1053AP
JUDGMENT P.S. Mishra, C.J.
1. Heard.
2. Management of M/s. Bharat Heavy Plates & Vessels Limited, a Government of India Undertaking, has preferred this appeal against the judgment, which reads as follows :
"Heard the learned counsel for the petitioner and the counsel for the respondent No. 1.
It is stated by both the counsel that the point raised in this Writ Petition is covered by the judgment of this Court in W.P. No. 5682 of 1992, dated October 30, 1995, reported in V. S. T Industries Canteen Workers Union v. V. S. T Company Ltd. . Following the said judgment, this writ petition is allowed in terms of the said judgment."
3. The main judgment in Writ Petition No. 5682 of 1992, came up in appeal in Writ Appeal No. 430 of 1996, which was heard along with Writ Appeal No. 385 of 1996, and affirmed by a Division Bench of this Court. In Writ Appeal No. 385/1996, the Court has considered the principles in the case of Bharat Heavy Electricals Limited Workers' Association v. Union of India , M. M. R. Khan v. Union of India , Dena Nath v. National Fertilizers Limited (1992-I-LLJ-289) (SC), Parimal Chandra Raha v. Life Insurance Corporation of India (1995-II-LLJ-339 (SC)) Employers in Relation 35 to the Management of Reverse Bank of India v. Their Workmen (1996-II-LLJ-42 (SC)), the order by the Bombay High Court in Writ Petition No. 909 of 1989, dated January 22, 1996 and the order of the Supreme Court in Special Leave to Appeal (Civil) No. 10125 of 1996 and has held that, as pointed out by the Supreme Court, industrial canteens can be divided into four categories as under :
"(1) Where, as under the provisions of the Factories Act, it is sutatuorily obligatory in the employer to provide and maintain canteen for the use of his employees, the canteen becomes a part of the establishment and, therefore, the workers employed in such canteen are the employees of the management.
(ii) Where, although, it is not statutorily obligatory to provide a canteen, it is otherwise an obligation on the employer to provide a canteen the canteen becomes a part of the establishment and the workers working in the canteen, the employees of the management. The obligation to provide a canteen has to be distinguished from the obligation to provide facilities to run canteen. The canteen run pursuant to the latter obligation, does not become a part of the establishment.
(iii) The obligation to provide canteen may be explicit or implicit. Where the obligation is not explicitly accepted by or cast upon the employer either by an agreement or an award etc. It may be inferred from the circumstances, and the provision of the canteen may be held to have become a part of the service conditions of the employees. Whether the provision for canteen services has become a part of the service conditions or not, is a question of fact to be determined on the facts and circumstances in each case.
Where to provide canteen services has become a part of the service conditions of the employees, the canteen becomes a part of the establishment and the workers in such canteen become the employees of the management.
(iv) Whether a particular facility or service has become implicitly a part of the service conditions of the employees or not, will depend, among others, on the nature of the service/facility, the contribution the service in question makes to the efficiency of the employees and the establishment, whether the service is available as a matter of right to all the employees in their capacity as employees and nothing more, the number of employees employed in the establishment and the number of employees who avail of the service, the length of time for which the service has been continuously available, the hours during which it is available, the nature and character of management, the interest taken by the employer in providing, maintaining, supervising and controlling the service, the contribution made by the management in the form of infrastructure and funds for making the service available etc."
and indicated as follows :
"It is clear thus from the above that the two propositions emerging in Parimal Chandra Raha's case (supra) i.e., (1) where, as under is the provisions of the Factories Act, it is statutorily obligatory on the employer to provide and maintain canteen for the use of his employees, the canteen becomes a part of the establishment and, therefore, the workers employed in such canteen are the employees of the management and (2) where, although it is not statutorily obligatory to provide a canteen, it is otherwise an obligation on the employer to provide a canteen, the canteen becomes a part of the establishment and the workers working in the canteen, the employees of the management. The obligation to provide a canteen has to be distinguished from the obligation to provide facilities to run canteen. The canteen run pursuant to the later obligation, does not become a part of the establishment, has found approval and has been consistently held to be the correct proposition and view of the law ........
From the facts of the instant case, it can reasonably be inferred that the case of the petitioner-appellants falls in Category-1 canteen as pointed out in Parimal Chandra Raha's Case (supra)."
4. Speaking on the maintainability of the writ petition for a writ in the nature of mandamus, the Court in Writ Appeal No. 430 of 1996 has pointed out that if the Court is satisfied that the appellant i.e., the industry has a public duty to perform by providing a canteen for its workers, a writ would issue and opined as follows :
"The test to be applied to judge whether any public duty is imposed by Section 46 of the Factories Act and the Rules framed thereunder i.e., Rules 65 to 71 of the Andhra Pradesh Factories Rules, 1950 upon the appellant, which is recongnised as the person or the authority, to provide the canteen and the provisions thus create a positive obligation upon the appellant to appoint such persons who are needed for the work of the canteen. It will be difficult for the appellant to urge that interest of the employees is not such which can be equated with public interest. It cannot obviously suggest that the purpose of conferring rule-making power upon the State Government under Section 46 of the Factories Act was not in the public interest and that the rules framed by the State Government are not in the public interest. In fact, no challenge has been raised before us as to the validity either of Section 46 of the Factories Act or the Rules framed by the State Government. Since rules, in our view, are framed in public interest, they do create a public duty upon every management to provide a canteen and thus all consequences of the duty of providing a canteen must be deemed to be public duty for the management. This Court shall refrain to interdict in disputes between the employer and the employee even if they are referable to the conditions of service and may decline to exercise its power under Article 226 of the Constitution of India in such cases. It shall cut back and act within the bounds of self-imposed restrictions when a dispute of fact would be required to be determined or where it would be in doubt whether a public duty is cast upon any person or authority and such person has failed to discharge his duty. In the instant case, however, when it is found that the appellant has ignored its obligation under the Rules 65 to 71 of the Andhra Pradesh Factories Rules and under Section 46 of the Factories Act, it can reasonably be found to be a case falling within the dicta in Praga Tools Corporation v. Sri C. A. Imanual (1969-II-LLJ-749) (SC) in which it is observed, "A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities."
and as pointed out in the said judgment in the words of Professor De Smith, "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by Statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract."
It is thus, in our view, a case in which people's sentinel on the qui vive, as the Supreme Court has pointed out, with full restraint should see that its jurisdiction does not become a jurisdiction of free exercise like a bull in china shop. We hold that the learned single Judge has committed no error in issuing the impugned directions. There is no merit in the appeal."
5. From the above, we have no manner of doubt that learned single Judge has taken a proper and correct view and rightly held in favour of the employees and issued necessary directions.
6. Learned counsel for the appellant, however, has attempted to canvass that it is not decided whether the canteen, which is provided to the workmen in the instant case, is a facility extended to them and not a statutory canteen. To answer the above, the Court is not required to enter into any discussion further than making a reference to Rules 65 to 71 of the Andhra Pradesh Factories Rules, 1950 and it has to be affirmed as has been held in Writ Appeal No. 430 of 1996, that the appellant has a statutory duty to provide a canteen for the workmen.
7. In view of the above, we find no merit in the appeal. The appeal is dismissed.