Jharkhand High Court
B.I.T. Mesra Hostel Mess Staff ... vs The Presiding Officer on 10 February, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W.P.(L) No. 2796 of 2012
1.B.I.T. Mesra Hostel Mess Staff Association
through its Joint Secretary, Anjani Kumar Pandey
2.Timan Baitha .... .. ... Petitioner(s)
Versus
The Presiding Officer, Industrial Tribunal, Ranchi & Ors... ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :- Video Conferencing)
.........
For the Petitioner : Mr. Sumir Prasad, Advocate
For the respondents : Mr. Satish Baxi, Advocate
......
11/ 10.02.2022. Heard, Mr. Sumir Prasad, learned counsel appearing on the instruction
of learned counsel for the petitioners, Mr. Baleshwar Yadav and Mr. Satish Baxi,
learned counsel appearing on the instruction of learned counsel for the respondents,
Mr. Srijit Choudhary.
Mr. Sumir Prasad, learned counsel appearing on the instruction of learned
counsel for the petitioners, Mr. Baleshwar Yadav has submitted, that petitioners
[B.I.T. Mesra Hostel Mess Staff Association through its Joint Secretary, Anjani
Kumar Pandey and Timan Baitha] have preferred the instant Writ Petition for setting
aside the Award dated 24.11.2011, passed by the learned Industrial Tribunal, Ranchi,
in Reference Case No.03/2008, whereby reference under Section 10(1)(D) of
Industrial Disputes Act, 1947 with regard to the claim of the employees working in
Hostel Mess in BIT Mesra, though controlled by the B.I.T. Mesra Management has
been negated by holding that B.I.T. Mesra Hostels are not controlled by the B.I.T.
Mesra Management.
Mr. Sumir Prasad, learned counsel for the petitioners has further submitted,
that following References have been made by the Government of Jharkhand under
Section 10(1)(D) of the Industrial Disputes Act vide Notification No.1/Sharma-D-
01-87/2005-IT-1079 dated 28.06.2008 whereby the terms of the reference are as
follows :-
"(i)Whether employees working in the hostel's mess, cooking house of
B.I.T. Mesra are controlled by the B.I.T. Mesra Management?
(ii)If yes, then whether these employees are entitled to get pay and
other benefits at par with the other employees who are under the control of
B.I.T. Management?
(iii) If yes, then from which date?"
Mr. Sumir Prasad, learned counsel for the petitioners has further submitted,
that the learned Tribunal has taken note of the documents, but gave a perverse
finding in terms of reference by holding that :-
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"(i)None of the workers employed in the messes of the hostels have
been appointed by the Management of the BIT.
(ii) The wages/ salaries of the Mess employees are paid by mess
committee from the mess account and not by the BIT Management.
(iii) For the purpose of ensuring proper work conditions including
appropriate salaries for the mess employees, the chief Warden
constitutes a Special Committee to assess and give its recommendation
in respect of the salaries payable to the various categories of mess
employees, the minimum qualifications required for their appointment,
the allowances including clothing, medical facilities, etc. and leave
applicable to them. The recommendations so made by the Special
Committee are implemented by the order of the Chief Warden.
(iv) The staff working in the hostel messes are transferred from one
hostel to another by the order of the Chief Warden, who happens to be
a senior member of the University Faculty.
(v)Some of the staffs working in the hostel mess, upon their being
appointed by the University as University employees, are transferred
to other branches of the University in other cities."
Thus, the learned Presiding Officer has held that on the basis of above facts,
it would prima facie lead to the inference that the employees of the hostel
messes, not being appointed by the BIT Management and their salaries not being
paid to them by the BIT Management, there is no relationship of employer and
employees between the BIT Management and the mess employees and as such it
can at once be declared that hostel mess employees are not the employees of the
BIT Management.
Learned counsel for the Petitioners, Mr. Sumir Prasad has further submitted
that some of the documents brought on record, have not been properly appreciated
by the learned Presiding Officer, Industrial Tribunal, Ranchi.
Learned counsel for the Petitioners, Mr. Sumir Prasad has further submitted
that a document which has been brought on record as Annexure-10 to the
Supplementary Affidavit filed on 11.01.2022, whereby petitioner No.2 (Timan
Baitha) has been granted leave for 'Chhath Puja and to attend the Court on the
direction of the Vice-Chancellor/Registrar, which has also been exhibited as W-3
before the learned Industrial Tribunal in Reference Case No.3 /2008 as such, this
shows that entire control was within the Vice-Chancellor/Registrar of the BIT
Mesra, as such, the finding given by the learned Presiding Officer, Industrial
Tribunal is perverse and may be set aside accordingly.
Learned counsel for the Petitioners, Mr. Sumir Prasad has further submitted
that some other documents have been brought on record by way of supplementary
affidavit, but those have not been exhibited in the Court of learned Industrial
Tribunal, Ranchi, as such, this Court may peruse the same, but may not take
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reference of those documents, as those have not been exhibited and the case may
be remanded to the learned Industrial Tribunal, Ranchi.
Learned counsel for the Petitioners, Mr. Sumir Prasad in support of his
submission has relied upon judgment passed by the Apex Court in the case of G.
B. Pant University of Agriculture and Technology, Pantnagar, Nanital vs. State
of U.P. & Ors. reported in 2000(7) SCC 109 at Para-8 which may profitably be
quoted hereunder :-
"8. Reliance by Mr Trivedi on Regulations 48, 49 64, 65, 67, 68, 69, 78, 86, 92
and 93 though apparently may have some relevance pertaining to the issue, but
reading the Regulations as a whole, it cannot be doubted that the same are only
framed for moral, persuasive and democratic reasons so as to involve the
students and to elicit their views, suggestions and ensure their participation in
mutual exercise of cooperation. We, however, feel it expedient to quote
hereinbelow a few of the Regulations which would unmistakably depict total
control of the University in the matter of running and maintenance of the
cafeteria and the same being as below:
"54. It shall be compulsory for each student residing in a hostel to join the
cafeteria of that hostel unless otherwise permitted by the Chief Warden of the
hostel on the request of the guardian of the student, and the recommendation of
the Warden of that hostel to take food with his guardian. In that event the Chief
Warden shall inform all officers concerned of the University, for example,
Comptroller, Dean Student Welfare, Hostel Warden, etc.
76. The Comptroller of the University shall operate the 'GBPUA Food Services
Account', issue cheques, maintain the cash book and classified accounts
(unitwise/headwise) of income and expenditure as well as students' ledgers in his
office like other accounts of the University. In addition to arranging timely
payment of the cafeteria bills duly authorised by the Warden and ensuring
recovery of all cafeteria dues from the students and staff members concerned the
Comptroller shall be responsible for getting the cafeteria accounts audited cent-
per cent regularly.
80. The Accounts Clerk-cum-Storekeeper of the hostel cafeteria shall be
responsible for the proper and up-to-date maintenance of the cafeteria stores,
store records and account books including daily-menu book, cash book,
consumable stock book, daily preparation and sales register, cash credit and
coupon transaction register, store daybook (roznamcha), indents, challans, bill
register, daily-sales sheets, cash-memo book, bill book, etc. under the direct
supervision, control and guidance of the Hostel Manager. His functions and
duties shall be as follows:
82. The other cafeteria staff including Tea Man, Head Cook, Bearers, etc. shall
work in accordance with the instructions of the Hostel Manager/Warden. The
duties of these staff members shall be defined/prescribed by the Warden of the
hostel.
88. The accounts of the Warden's Office (bills and vouchers) shall be taken by
the Hostel Manager to the Office of the Comptroller for scrutiny and checking.
92. The entire cafeteria staff shall work under the direct supervision of the
Warden/Assistant Warden in accordance with the advice of the Food Committee
and under the administrative control of the Chief Warden. All cases of
appointments, termination of service and other punishments and promotions,
rewards etc. shall be dealt with by the Chief Warden in consultation with the
Warden and the Food Committee.
93. (i) All the appointments of cafeteria staff would be made by the Food
Committee of the hostel with the approval of the Chief Warden.
(ii) The leave, annual increments, uniform, travelling allowance etc. to the
cafeteria staff shall be governed in accordance with the policies laid down by the
Central Food Committee.
106. (i) The bills/vouchers/imprest/temporary advance adjustment accounts and
monthly food accounts duly passed by the respective Food Secretary/ Chairman,
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Food Committee to their entire satisfaction and entered in the Food Provision
Control Register shall be sent to the Comptroller directly for scrutiny and
payment/adjustment/recovery of dues expeditiously. The Wardens, Hostel
Managers and the respective Food Secretaries will be fully responsible for
making stock entries of all purchases made in respect of their hostels. The
payment will be made only if a certificate in the following form is given on the
bill (rubber stamp for which could be got made for convenience):
'Certified that the goods as per specification have been received and entered in
the stock books.'
(ii) The Warden shall have full financial and administrative control of their
hostel cafeteria funds and be responsible for up-to-date maintenance of account
books and submission of bills/vouchers/adjustment accounts, the preparation of
monthly food accounts and submission of monthly recovery lists accurately
within time and according to the procedure prescribed in the Hostel Cafeteria
Regulations. The Wardens/Hostel Managers/Food Secretary concerned will be
fully responsible for checking of rates charged in the bills and payments will be
authorised on the basis of the certification.
107. (i) Similarly, the preparation of vouchers for adjustment account of
temporary advances and recoupment of the permanent advance shall be done by
the Accounts Clerk-Cum-Storekeeper/Hostel Manager which shall be checked
and signed by the Food Secretary, Warden expeditiously and the Warden shall
ensure that no cash is drawn and retained by the hostel cafeteria when it is not
required for its immediate expenditure.
109. The hostel cafeteria's Accounts Clerk-cum-Storekeeper shall be responsible
to the Warden/Chief Warden on the one hand and on the other be also
responsible to the Comptroller for correctness of the cafeteria accounts."
Learned counsel for the Petitioners, Mr. Sumir Prasad has thus, submitted
that this shows that the Workmen/ petitioners were looked after by the respondent
-BIT Management, as such, they are employees of respondent- BIT Management.
Mr. Satish Baxi, learned counsel appearing on the instruction of Mr. Srijit
Choudhary, learned counsel for the Respondent- Management of BIT has strongly
opposed the prayer and submitted that the aforesaid judgment is to be looked in its
totality and in support of his submission, has placed reliance at Paras-4, 7, 8, 9
and 12 of judgment of Apex Court in the case of G. B. Pant University of
Agriculture and Technology (supra), which may profitably be quoted
hereunder :-
"4. Mr Trivedi, the learned Additional Solicitor General appearing in support of
the appeals rather strongly contended that the High Court has totally
misconstrued the Regulations framed under the statute pertaining to hostel and
cafeteria (Hostel and Cafeteria Regulations under the U.P. Agricultural
University Act, 1958) and rather after a longish narration of the Regulations
contended that it is not the University which has any control over the employees
of the cafeteria but the Food Committee which has specific role in the matter of
management and control of the cafeteria and since there exists no evidence
whatsoever on record that the employees working in the cafeteria were appointed
by the University in accordance with the provisions contained in the Act or the
statute framed thereunder, question of there being any master-servant
relationship would not arise. It is in this context also it has been contended by
Mr Additional Solicitor that there is no budgetary allocation provided in the
University budget to meet the expenses on account of the salaries of the cafeteria
employees and as such, question of the cafeteria employees being termed to be
the employees of the University would not arise. Strong reliance was placed on
the decision of this Court in All India Rly. Institute Employees' Assn. v. Union of
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India [(1990) 2 SCC 542 : 1990 SCC (L&S) 323 : (1990) 13 ATC 691] wherein
this Court observed: (SCC p. 549, paras 12-13)
"12. By their very nature further the services of the institutes/clubs are availed of
beyond working hours only. It is common knowledge that not all members of the
railway staff avail of them. One has to be a member to do so by paying fees. The
membership is also optional. That is why most of the staff employed in the
institutes/clubs is part-time. As has been stated by the respondents, out of about
1741 employees engaged in 499 institutes and 332 clubs nearly half are part-
time employees. The services rendered by the employees are not of a uniform
nature. They are engaged for different services with different service conditions
according to the requirement. The institutes/clubs further do not engage in
uniform activities, the activities conducted by them varying depending upon the
infrastructure and the facilities available at the respective places.
13. What is more important as far as the issue involved in this petition is
concerned, is that the provision of the institutes/clubs is not mandatory. They are
established as a part of the welfare measure for the railway staff and the kind of
activities they conduct depend, among other things, on the funds available to
them. The activities have to be tailored to the budgets since by their very nature
the funds are not only limited but keep on fluctuating. If the costs of the activities
go beyond the means, they have to be curtailed. So also, while starting a new
activity, it is necessary to take into account its financial implications and the
capacity of the institute/club to raise the necessary funds. The only varying
component of the funds is the membership fee which is uncertain."
7. We find substance in the submission of Mr Gupta. A perusal of the Regulations
as framed under the statute (U.P. Agricultural University Act) unmistakably
depict that the twin conventional tests of implicit obligation and factors of
overall control and supervision by the University stand satisfied and the legal
responsibility cannot be shifted to the students as is sought to be contended.
8. Reliance by Mr Trivedi on Regulations 48, 49 64, 65, 67, 68, 69, 78, 86, 92
and 93 though apparently may have some relevance pertaining to the issue, but
reading the Regulations as a whole, it cannot be doubted that the same are only
framed for moral, persuasive and democratic reasons so as to involve the
students and to elicit their views, suggestions and ensure their participation in
mutual exercise of cooperation. We, however, feel it expedient to quote
hereinbelow a few of the Regulations which would unmistakably depict total
control of the University in the matter of running and maintenance of the
cafeteria and the same being as below:
"54. It shall be compulsory for each student residing in a hostel to join the
cafeteria of that hostel unless otherwise permitted by the Chief Warden of the
hostel on the request of the guardian of the student, and the recommendation of
the Warden of that hostel to take food with his guardian. In that event the Chief
Warden shall inform all officers concerned of the University, for example,
Comptroller, Dean Student Welfare, Hostel Warden, etc.
76. The Comptroller of the University shall operate the 'GBPUA Food Services
Account', issue cheques, maintain the cash book and classified accounts
(unitwise/headwise) of income and expenditure as well as students' ledgers in his
office like other accounts of the University. In addition to arranging timely
payment of the cafeteria bills duly authorised by the Warden and ensuring
recovery of all cafeteria dues from the students and staff members concerned the
Comptroller shall be responsible for getting the cafeteria accounts audited cent-
per cent regularly.
80. The Accounts Clerk-cum-Storekeeper of the hostel cafeteria shall be
responsible for the proper and up-to-date maintenance of the cafeteria stores,
store records and account books including daily-menu book, cash book,
consumable stock book, daily preparation and sales register, cash credit and
coupon transaction register, store daybook (roznamcha), indents, challans, bill
register, daily-sales sheets, cash-memo book, bill book, etc. under the direct
supervision, control and guidance of the Hostel Manager. His functions and
duties shall be as follows:
82. The other cafeteria staff including Tea Man, Head Cook, Bearers, etc. shall
work in accordance with the instructions of the Hostel Manager/Warden. The
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duties of these staff members shall be defined/prescribed by the Warden of the
hostel.
88. The accounts of the Warden's Office (bills and vouchers) shall be taken by
the Hostel Manager to the Office of the Comptroller for scrutiny and checking.
92. The entire cafeteria staff shall work under the direct supervision of the
Warden/Assistant Warden in accordance with the advice of the Food Committee
and under the administrative control of the Chief Warden. All cases of
appointments, termination of service and other punishments and promotions,
rewards etc. shall be dealt with by the Chief Warden in consultation with the
Warden and the Food Committee.
93. (i) All the appointments of cafeteria staff would be made by the Food
Committee of the hostel with the approval of the Chief Warden.
(ii) The leave, annual increments, uniform, travelling allowance etc. to the
cafeteria staff shall be governed in accordance with the policies laid down by the
Central Food Committee.
106. (i) The bills/vouchers/imprest/temporary advance adjustment accounts and
monthly food accounts duly passed by the respective Food Secretary/Chairman,
Food Committee to their entire satisfaction and entered in the Food Provision
Control Register shall be sent to the Comptroller directly for scrutiny and
payment/adjustment/recovery of dues expeditiously. The Wardens, Hostel
Managers and the respective Food Secretaries will be fully responsible for
making stock entries of all purchases made in respect of their hostels. The
payment will be made only if a certificate in the following form is given on the
bill (rubber stamp for which could be got made for convenience):
'Certified that the goods as per specification have been received and entered in
the stock books.'
(ii) The Warden shall have full financial and administrative control of their
hostel cafeteria funds and be responsible for up-to-date maintenance of account
books and submission of bills/vouchers/adjustment accounts, the preparation of
monthly food accounts and submission of monthly recovery lists accurately
within time and according to the procedure prescribed in the Hostel Cafeteria
Regulations. The Wardens/Hostel Managers/Food Secretary concerned will be
fully responsible for checking of rates charged in the bills and payments will be
authorised on the basis of the certification.
107. (i) Similarly, the preparation of vouchers for adjustment account of
temporary advances and recoupment of the permanent advance shall be done by
the Accounts Clerk-Cum-Storekeeper/Hostel Manager which shall be checked
and signed by the Food Secretary, Warden expeditiously and the Warden shall
ensure that no cash is drawn and retained by the hostel cafeteria when it is not
required for its immediate expenditure.
109. The hostel cafeteria's Accounts Clerk-cum-Storekeeper shall be responsible
to the Warden/Chief Warden on the one hand and on the other be also
responsible to the Comptroller for correctness of the cafeteria accounts."
9. The detailed analysis as above has been introduced in this judgment so as to
exhibit the control of the University in the matter of running of the cafeteria. As
noticed above, a residential university having a canteen facility and the inmates
of the hostel not being permitted to have food from outside cannot possibly be
said to be a mere welfare service to the students. It is a requirement of the
Regulations framed under the Act and thus having statutory sanction and force
-- the issue thus comes up for consideration as to whether it is a mere ancillary
benefit conferred on to the inmates of the hostel or an essential requirement. The
Regulations pertaining to the hostel accommodation and the supplies of food do
not warrant any other conclusion than to treat it as an essential requirement so
far as the inmates of the hostel are concerned. The involvement of the Vice-
Chancellor, the Warden and the Food Managers who admittedly all belong to the
University as employees thereof cannot negate the cry of the labour force asking
for a parity in their scale of pay. Regularisation will undoubtedly bring forth a
parity with the other employees of the University. The requirement of the number
of employees also cannot be brushed aside. More than 175 employees are
required for the purpose of providing food to the inmates of the hostels -- there
are altogether 14 hostels and the inmates have to depend on the cafeteria for
their food service since nobody else can, as a matter of fact, avoid (sic provide)
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the needs of the cafeteria -- it is a requirement of the Regulation.
12. The Regulations if read on the lines as noticed hereinbefore lead to the
unmistakable conclusion that the employees of the cafeteria cannot but be
termed to be the employees of the University."
Mr. Satish Baxi, learned counsel has thus, submitted that the fact of the case
of G. B. Pant University of Agriculture and Technology (supra) is different than
the fact of the present case, as the fact of the G. B. Pant case is that State
Legislature has enacted U.P. Agricultural University Act, 1958 and the G. B. Pant
University of Agricultural and Technology has been established under the said Act
and there were provisions with regard to the overall control and supervision which
has been raised and have rightly been interpreted by the Apex Court. But so far in
the instant case i.e. BIT Mesra, Ranchi, there is no such enactment by the State
Legislature and there is absent of such provisions, as such, this Court may not
rely upon that judgment which is totally different on fact and cannot be looked
into in the facts and circumstances of the instant case.
Mr. Satish Baxi, learned counsel appearing on the instruction of Mr. Srijit
Choudhary, learned counsel for the Respondent- BIT in support of his submission
has further placed reliance upon the judgment passed by the Apex Court in the
case of Syed Yakoob vs. K.S. Radhakrishnan and Ors, reported in AIR 1964 SC
477 corresponding (1964) 5 SCR 64, whereby the Constitutional Bench has held
in the majority view at Paras 7 & 8 which may profitably be quoted hereunder :-
"7.The question about the limits of the jurisdiction of High Courts in issuing a writ of
certiorari under Art. 226 has been frequently considered by this Court and the true legal
position in that behalf is no longer in doubt. A writ of certiorari can be issued for
correcting errors of jurisdiction committed by inferior courts or tribunals; these are
cases where orders are passed by inferior courts or tribunals without jurisdiction, or in
excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be
issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts
illegally or improperly, as for instance, it decides a question without giving an
opportunity to be heard to the party affected by the order, or where the procedure
adopted in dealing with the dispute is opposed to principles of natural justice. There is,
however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory
jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This
limitation necessarily means that findings of fact reached by the inferior Court or
Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in
writ proceedings. An error of law which is apparent on the face of the record can be
corrected by a writ, but not an error of tact, however grave it may appear to be. In
regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if
it is shown that in recording the said finding, the. Tribunal had. erroneously refused to
admit admissible and material evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding. Similarly, if a finding of fact is
based on no evidence, that would be regarded as an error of law which can be corrected
by a writ of certiorari. In dealing with this category of cases, however, we must always
bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in
proceedings for a writ of certiorari on the ground that the relevant and material
evidence adduced before the Tribunal was' insufficient or inadequate to sustain the
impugned finding. The adequacy or sufficiency of evidence led on a point and the
inference of fact to be drawn from the said finding are within the exclusive jurisdiction
of the Tribunal, and the said points cannot be agitated before a writ court. It is within
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these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a
writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed
Ishaque(1), Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals,
Assam(2), and Kaushalya Devi v. Bachittar Singh(3). Reported in 1955] 1 S.C.R. 1104.
(2) [1958] S.C.R. 1240. (3) A.I.R. 1960 S.C. 1168 respectively.
8. It is, of course, not easy to define or adequately describe what an error of law
apparent on the face of (1) [1955] 1 S.C.R. 1104. (2) [1958] S.C.R. 1240. (3) A.I.R.
1960 S.C. 1168. the record means. What can be corrected by a writ has to be an error of
law; but it must be such an error of law as can be regarded as one which is apparent on
the face of the record. Where it is manliest or clear that the conclusion of law recorded
by an inferior Court or Tribunal is based on an obvious mis-interpretation of the
relevant statutory provision, or sometimes in ignorance of it, or may be, even in
disregard of it, or is expressly rounded on reasons which are wrong in law, the said
conclusion can be corrected by a writ of certiorari. In all these cases, the impugned
conclusion should be so plainly inconsistent with the relevant statutory provision that no
difficulty is experienced by the High Court in holding that the said error of law is
apparent on the face of the record. It may also be that in some cases. the impugned error
of law may not be obvious or patent on the face of the record as such and the Court may
need an argument to discover the said error; but there can be no doubt that what can be
corrected by a writ of certiorari is an error of law and the said error must, on the whole,
be of such a character as would satisfy the test that it is an error of law apparent on the
face of the record. If a statutory provision is reasonably capable of two constructions
and one construction has been adopted by the inferior Court or Tribunal, its conclusion
may not necessarily or always be open to correction by a writ of certiorari. In our
opinion, it is neither possible nor desirable to attempt either to define or to describe
adequately all cases of errors which can be appropriately described as errors of law
apparent on the face of the record. Whether or not an impugned error is an error of law
and an error of law which is apparent on the face of the record, must always depend
upon the facts and circumstances of each case and upon the nature and scope of the
legal provision which is alleged to have been misconstrued or contravened."
Mr. Satish Baxi, learned counsel for the Respondent- BIT has thus,
submitted that this Hon'ble Court may not grant relief to the petitioners on the
basis of document which has not been exhibited and that document is not signed
by the Vice-Chancellor or Registrar of the BIT Mesra, as such, the impugned
order passed by the court below i.e. Industrial Tribunal, Ranchi, does not require
any interference by this Hon'ble Court.
Mr. Satish Baxi, learned counsel in support of his submission has further
placed reliance upon the judgment passed by the Apex Court in the case of
National Aluminium Company Limited vs. Ananta Kishore Rout and Ors,
reported in 2014(6) SCC 756, whereby it has already been held that issue is no
more res integra in absence of any evidence brought on record by the Workmen
claiming themselves that they are being paid by the BIT Mesra, Ranchi or they are
being employed by the BIT, Ranchi, as such, the impugned reference has rightly
been decided by the learned Industrial Tribunal, Ranchi.
Paras 24, 25, 28, 31 to 33 of National Aluminium Company Limited
(supra) may profitably be quoted hereunder :-
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"24. Merely because the schools are set up by NALCO or they have agreed to take care
of the financial deficits for the running of the schools, according to us, are not the
conclusive factors. Such aspects have been considered by this Court in various cases. In
the case of RBI (Supra), question was as to whether workers of the canteens which were
established and even financed by the RBI, were the workers of RBI. Various canteens
were set up by the RBI which were being run through a Cooperative Society. They were
established in the Bank's premises for the benefit of its employees. The Bank was
reimbursing the charges incurred in getting various statutory licenses. Even prior
permission of the RBI was required to increase the strength of the employees. Holding
that these canteen workers were not the employees of RBI, the court observed:
"10. The Bank does not supervise or control the working of the canteens or the
supply of eatables to employees. The employees are not under an obligation to
purchase eatables from the canteen. There is no relationship of master and
servant between the Bank and the various persons employed in the canteens
aforesaid. The Bank does not carry any trade or business in the canteens. The
staff canteens are established only as a welfare measure. Similar demands made
by the staff canteen employees and the request made to the Central Government
to refer the dispute for adjudication was rejected by the Central Government and
the challenge against the same before the Calcutta High Court was unsuccessful.
According to the Bank, it has no statutory or other obligation to run the canteens
and it has no direct control or supervision over the employees engaged in the
canteens. It has not right to take any disciplinary action or to direct any canteen
employee to do a particular work. The disciplinary control over the persons
employed in the canteens does not vest in the Bank nor has the Bank any say or
control regarding the allocation or work or the way in which the work is carried
out by the said employees. Sanctioning of leave, distribution of work,
maintenance of the Attendance Register are all done either by the
Implementation Committee (Canteen Committtee) or by the Cooperative Society
or by the contractor."
25. The court noticed that the Implementation Committee (Canteen Committee) which
was running the canteen consisted of certain members, three out of which were
nominated by the Bank. This was held to be a non-determinative factor. Following
discussion on this aspect is also material and, therefore we extract the same hereunder:
"Moreover, there is no right in the Bank to supervise and control the work done by the
persons employed in the Committee nor has the Bank any right to direct the manner in
which the work shall be done by various persons. The Bank has absolutely no right to
take any disciplinary action or to direct any canteen employee to do a particular work.
Even according to the Tribunal, the Bank exercises only a 'remote control'."
28. More significant case, having close proximity with the present one is the judgment in
SC Chandra & Ors. v. State of Jharkhand and Ors. 2007 (8) SCC 279. In that case
Hindustan Copper Limited (HCL), the Government of India enterprise, had established
a school. Employees of that school claimed that their real employer was HCL. Admitted
facts were that school was established by the HCL with the object of benefiting children
of the workers of the HCL. Even the financial assistance was provided to the schools.
The Court however, came to the conclusion that only by giving financial assistance the
HCL did not become the employer of teachers and staff working in the school. They
were held to be the employees of the Managing Committee of the school. That apart of
the discussion which has direct bearing on the present case runs as follows:-
"8. We have heard learned counsel for the parties and perused the records. The basic
question before us is whether a writ of mandamus could be issued against the
management of HCL. The learned Single Judge relying on the Division Bench in an
identical matter pertaining to Bharat Cooking Coal Limited dismissed the writ petition
of the appellants. This issue was examined in an analogous writ petition and in the
aforesaid case, this issue was extensively considered as to whether the management of
the school is the direct responsibility of HCL or not. After considering the matter in
detail, the learned Single Judge relying on the aforesaid judgment found that there is no
relationship of master and servant with that of the teachers and other staff of the school
with HCL as the management of the school was done by the Managing Committee
though liberal financial grant was being made by the Corporation. By that there was no
direct connection of the management of HCL with that of the management of the school.
Though through various communication an impression was sought to be given that the
school is being run by HCL but in substance HCL only used to provide financial
assistance to the school but the management of the school was entirely different than the
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management of HCL. Giving financial assistance does not necessarily mean that all the
teachers and staff who are working in the school have become the employees of HCL.
Therefore, we are of the view that the view taken by the learned Single Judge appears to
be correct that there was no relationship of the management of HCL with that of the
management of the school though most of the employees of HCL were in the Managing
Committee of the school. But by that no inference can be drawn that the school had bee
n established by HCL. The children of workers of HCL were being benefited by the
education imparted by this school. Therefore the management of HCL was giving
financial aid but by that it cannot be construed that the school was run by the
management of HCL. Therefore, under these circumstances, we are of opinion that the
view taken by the learned Single Judge appears to be correct."
31. It was argued that the Managing Committee cannot be the employer as it would lose
its identity on the termination of agreement between NALCO and SVS. However, even
that by itself cannot be the determinative factor. When the agreement was earlier entered
into between NALCO and CCMT, and staff was appointed in the school by CCMT,
NALCO ensured that such staff is taken over by SVS. For this purpose a specific clause
is provided in agreement between NALCO and SVS which reads as under:
"That if any of the parties hereto at any time wishes to terminate this arrangement, it
may do so on giving of least six months prior notice in writing to the other party, of such
an intention, provided that such termination shall be effective only at the close of the
academic session. Provided further that in the event of such termination, the services of
the staff employed by the school shall, subject to any agreement to the contrary between
the two parties hereto, be terminated in accordance with the terms of their appointment
in the Chinmaya Vidyalaya, Damanjodi."
32. Only because SVS agreed to take over the employees, would not mean that NALCO
becomes the employer. On the contrary, this clause suggests that but for the intervention
of NALCO, the school staff that was engaged by CCMT would have been dealt with by
CCMT. It is a matter of record that CCMT runs other schools as well. In that eventuality
it would have taken these employees with themselves or retrench these employees in
accordance with law. Same is the position of SVS who have other schools also. However,
this kind of situation is not going to arise in the present case. We place on record the
assurance given by the learned Senior Counsels appearing for NALCO that the teaching
and other staff of the two schools would not lose their jobs even if present agreement of
NALCO with SVS comes to an end and the management is taken over by some other
agency for running the schools. We direct that NALCO shall stand committed by this
assurance and would adhere to the same for all times to come. The position which
emerges, in view of the aforesaid assurance, is that the service tenure of these employees
is protected.
33. In so far as their service conditions are concerned, as already conceded by even the
respondents themselves, their salaries and other perks which they are getting are better
than their counter parts in Government schools or aided/ un-aided recognised schools
in the State of Orissa. In a situation like this even if, for the sake of argument, it is
presumed that NALCO is the employer of these employees, they would not be entitled to
the pay scales which are given to other employees of NALCO as there cannot be any
comparison between the two. The principle of 'equal pay for equal work' is not attracted
at all. Those employees directly employed by NALCO are discharging altogether
different kinds of duties. Main activity of NALCO is the manufacture and production of
alumina and aluminium for which it has its manufacturing units. The process and
method of recruitment of those employees, their eligibility conditions for appointment,
nature of job done by those employees etc. is entirely different from the employees of
these schools. This aspect is squarely dealt with in the case of SC Chandra & Ors.
(supra) where the plea for parity in employment was rejected thereby refusing to give
parity in salary claim by school teachers with class working under Government of
Jharkhand and BCCL. The discussion which ensued, while rejecting such a claim, is
recapitulated hereunder in the majority opinion authored by A.K. Mathur, J.:
"20. After going through the order of the Division Bench we are of opinion that the view taken by the Division Bench of the High Court is correct. Firstly, the school is not being managed by BCCL as from the facts it is more than clear that BCCL was only extending financial assistance from time to time. By that it cannot be saddled with the liability to pay these teachers of the school as being paid to the clerks working with BCCL or in the Government of Jharkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, -11- BCCL cannot be saddled with the responsibilities of granting the teachers the salaries equated to that of the clerks working in BCCL.
21. Learned counsel for the appellants have relied on Article 39(d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in BCCL or the Government of Jharkhand for application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be educated with the clerks of the State Government or of BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana v. Charanjit Singh wherein Their Lordships have put the entire controversy to rest and held that the principle, 'equal pay for equal work' must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL."
Mr. Satish Baxi, learned counsel has further submitted that the Court has given ample opportunities to the petitioners to show that they are being paid through the BIT Mesra account, but the document which has been brought on record though has not been exhibited before the learned Industrial Tribunal shows that it is a acquittance roll where the salary/money is being given by the Hostel Mess Committee and not by the BIT Mesra, as such, the finding recorded by the learned Industrial Tribunal, Ranchi does not require any interference by this Hon'ble Court.
After hearing learned counsel for the parties and having gone through the materials available on records, this Court under Article 226 of the Constitution of India has limited jurisdiction to look into the matter and the document (s) which has not been exhibited before the learned Industrial Tribunal cannot be looked into at this stage by this Court in view of the judgment passed by the Apex Court, as referred above.
It further appears to this Court that the learned Industrial Tribunal has rightly recorded the finding by negating the reference made before the learned Tribunal. Further, the petitioners-Workmen have failed to establish that they have been appointed by the respondent- BIT Mesra or their salary was being paid from the BIT Mesra account, rather it is apparent from the materials available on record that they are controlled by a Welfare Committee under the Chairmanship of the Senior Faculty Member with Student Committee and some subsidies are being given by the BIT Mesra, but that does not confer the respondent as a permanent employee of the BIT Mesra.
Accordingly, the instant Writ Petition stands dismissed.
Pending I.A. stands closed.
Sandeep/ (Kailash Prasad Deo, J)