Gauhati High Court
Central Bank Canteen Boys Association vs Central Bank Of India on 23 August, 1999
Equivalent citations: (2000)ILLJ1493GAU
JUDGMENT J.N. Sarma, J.
1. This writ application has been filed by the Central Bank Canteen Boys Association a registered Trade Union represented by its General Secretary claiming the following reliefs:
(i) to absorb the members of the petitioner Association as per list annexed hereto by treating them to be employees of the Central Bank of India from the date of their initial appointment (ii) to pay them regular scale of pay with all allowances as may be applicable to the regular employees of the Bank.
2. In the list annexed hereto there are as many as 24 persons and their names with category, Branch and date of joining are as follows:
Sl. No. Name Category Branch Date of joining
1.
Akhil Barman Gen Sualkuchi 31.10.84
2. Golok Ch. Das SC Regional Office, Guwahati 12.5.85
3. Bipin Ch. Borah Gen Guwahati branch 1.7.85
4. Lohit Das Gen Bijoynagar 3.4.86
5. Khagen Das Tangla 4.4.86
6. Pradip Mandal SC Dibrugarh 8.4.86
7. Anil Ch. Das Gen Guwahati 1.2.87
8. Pradip Das Gen Fancybazar 4.3.87
9. Babul Kalita Gen Nayabasti 5.2.88
10. Prasanta Dutta Gen AT Road Jorhat 1.3.88
11. Kanlara Das Jagaon 2.3.88
12. Subesh Guranag Imphal 2.3.88
13. Amal Das Tinsukia 2.4.88
14. Babul Deb Ray Silchar 3.4.88
15. Lakendra Das Gen Zonal Office 3.4.88
16. Apu Nath Gen Panchgram 3.7.88
17. Dilip Das Zonal Office 1.8.88
18. Suraj Thapa Shillong 24.2.89
19. Surlang Brahma Tezpur 10.3.89
20. Prabhat Barman Belsor 5.10.89
21. Bhupen Ch. Deka Gen Kumarpara 1.1.91
22. Madan Das Agartala 27.3.91
23. Subhash Ch. Kalita Gen BO, Guwahati 2.3.93
24. Bhupen Ch. Das Gen Dispur 3.3.93
3. The petitioners are working as canteen staff in the recognised canteen of Bank spread throughout the North-Eastern region and though they have been absorbed as regular staff, they have not been given even statutory minimum wages and they have been differentiated for the other benefits like pay and allowances with the similarly situated employees of the said Bank. The Bank in question i.e. Central Bank of India is a wholly owned Central Govt. undertaking. These canteens have been set up by the Respondent Bank as a measure of staff welfare and the canteens are recognised by the Respondent-Bank and are directly controlled and supervised by the respective canteen committees set up by the Bank. The Bank officers are responsible for the administrative control of these canteens. They have control, with regard to their recruitment/termination, payment of salaries etc. All the paraphernalia of the canteens have been provided by the Bank. The salaries being paid to the members of the petitioner-association are also reimbursed by the Bank. They also have been issued the Identity cards by the Bank. But the salaries being paid to them are ranging from 350/- to 550/- p.m. The petitioner-Association submitted representations on February 23, 1994, April 2, 1994 and June 24, 1994 requesting that the canteen boys be absorbed as regular sub-staff employees of the Bank. It may be stated herein that similar canteen boys of earlier Purbanchal Bank Ltd. have been absorbed as regular sub-staff of the Respondent-Bank after the Bank was amalgamated with the Respondent Bank consequent to the orders passed by this Hon'ble Court in a writ application filed by the Purbanchal Bank Tea Boys Association. That was the order in writ Appeal No. 24/93 and 29/93. It is submitted that these petitioners are similarly situated with the employees/canteen boys of Purbanchal Bank which has been amalgamated with the present Bank and there is no ground to discriminate them.
4. An affidavit-in-opposition has been filed on behalf of the Bank and following are the stand taken by the Bank authority, (i) that the canteen committees are the employers of the members of the petitioner-Association (ii) the petitioner-Association may raise any industrial dispute and the Industrial Tribunal is the proper forum to decide the matter (iii) the Management of the Bank has no control whatsoever over the management and function of the canteen Committees (iv) they are not discharging similar identical duties and functions discharged by the sub-staff appointed by the Respondent-Bank. Regarding amalgamation and absorption of the employees of the Purbanchal Bank it is stated in paragraph 18 that the case of the canteen boys of Purbanchal Bank is not similar and identical with that of the present writ petitioners. It may be stated herein that the order in the writ Appeal passed by this Court has been upheld by the Apex Court. In the judgment in the writ appeal the proviso to Section 45(5)(i) of the Banking Regulation Act, 1949 have been quoted and in paragraph 8 of the judgment a direction was given to the appellant-Bank to implement the provisions of Clauses 10 and 11 of the scheme in relation to Tea Boys or Canteen Boys and there was a further order that this shall be done within a period of 3 months from the date of the order. The admitted position is that in terms of this order the Canteen boys of Purbanchal Bank have been given that benefit, but that benefit has not been given to the Canteen boys of the present Bank who are working as indicated above for a long period.
5. I have heard Mr. R.P. Sarmah, learned Advocate for the writ petitioners and Mr. B.P. Kataki, learned counsel for the respondents. Mr. Sarmah, learned Advocate for the petitioners draws my attention to Sastri award and with regard to this particular Bank with the Central Bank and that portion of the award is quoted below:
"609. The next important question relates to the scope of this option i.e. whether it should be only with reference to what is called the totality of all the pre-existing terms and the totality of all the terms of our award. The workmen demand that distinctive groups of benefits should be recognized and the choice should be given with reference to each of such groups. The Banks oppose the splitting up of the totality of the terms of service.
Several distinctive groups in relation to the monetary benefits, present and future and service conditions and other amenities do exist. In our judgment such distinctive groups should be sorted out and a choice should be given with reference to the preexisting terms and the terms of our award in relation to some at least of the groups but taking each of them as one unit.
Even the Bank's counsel had to admit that in evaluating the benefits of pre-existing terms and the terms of our award there are certain service conditions which cannot be valued in terms of money. We have carefully considered the matter of grouping and we are of the opinion that the grouping should be on the following lines.
(1) Pay, dearness allowance, special allowance, house rent allowance, and officiating allowance. (2) Provident Fund.
(3) Gratuity and pension.
(4) Bonus (5) Leave Rules.
(6) Working hours and overtime.
(7) Conditions of service other than working hours and overtime, and (8) Amenities i.e. Canteen, club-house payment of taxes etc. We are of the opinion that no option should be given in respect of the following groups:-
(1) Leave Rules.
(2) Working hours and overtime (3) Conditions of service other than working hours and overtime, and (4) Amenities, except as otherwise provided for in our award.
We may in particular make it clear that there will be no choice in respect of the following items, viz. "other allowances", and "medical relief" except as otherwise provided for in our award. In these matters also the awarded terms will apply to all the workmen."
It will be seen that these canteens have been provided in terms of this Sastri award. The learned Advocate for the petitioners also places the following decisions: (i) (1995-II-LLJ-339) (SC) (Parimal Chandra Raha and Ors. v. Life Insurance Corporation of India and Ors.) That was a case with regard to the Canteen being run by LIC. and in paragraph 25 the law has been laid down as follows:
"What emerges from the statute law and the judicial decisions is as follows:
(i) Whereas under 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.
(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 of 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 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."
The substance of paragraph 29 is as follows:-
"In the circumstances of the case, the canteens of the respondent-Corporation have become a part of the establishment of the Corporation. The canteen committees, the co-operative Society of the employees and the contractors engaged from time to time are in reality the agencies of the Corporation and are, only a veil between the Corporation and the canteen workers. Therefore, the canteen workers are in fact the employee of the Corporation."
No doubt that was a matter which arose out of a dispute decided by the Industrial Tribunal.
(ii) (1998-II-LLJ-238) (SC) (Union of India and Ors. v. Subir Mukherjee and Ors.) That was a case with regard to the regularisation of service. The labourers were the members of the Handling Porters Co-operative Society supplied by Railway Contractor for doing work of Railway. The labourers were working continuously and uninterruptedly since last 10 years. It was found that the work they have been doing is of perennial nature. A direction was issue by the Central Administrative Tribunal giving discretion to the Railway to absorb them as regular group D employees bearing in mind quantum of work and subject to their fitness. On facts, the Supreme Court found that this direction to be a fair one, and the Supreme Court did not interfere with that order.
(iii) (1996-II-LLJ-42) (SC) (Employers in relation to the Management of Reserve Bank of India v. Their Workmen). That was a case by three Judges of the Supreme Court. There the Reserve Bank of India has been providing canteen facility to its class 3 and 4 employees. In the offices of the R.B.I. the canteens are run either by Implementation Committee (Canteen Committee) or Co-operative Society or contractors. In all the three different categories of canteens-canteens run by the implementation committee (Canteen committee), Co-operative societies and contractors-The Bank was making grants by way of subsidy at 95% of the costs incurred by the canteens for payment of salary, P.F. contribution, gratuity, uniform etc., besides providing fuel, water, fixtures, utensils, furniture, electricity, premises etc. free of charge. The question was whether the employees engaged in these canteens were workmen of the R.B.I. The Supreme Court found that in the absence of any obligation statutory or otherwise regarding the running of a canteen by the Bank and in the absence of any effective or direct control in the Bank to supervise and control the work done by various persons, the workers in the canteen run by the Implementation Committee (Canteen Committee) cannot be said to be employees of the R.B.I. In that case the Supreme Court found that the Bank had not control whatsoever over the employees and as such, without setting aside the earlier decision, in M.M.R. Khan's case in (1995-III-(SuppI.)-LLJ-166) it was held that they are not employees of the Bank and as such, the award of Tribunal was set aside. The Supreme Court in that case took note of the case reported in (1995-II-LLJ-339)(SC) (supra) and that case was held to be correct law and the condition mentioned in paragraph 25 of the judgment was held to be the correct position as the law. So, the law as laid down in No. 3 and 4 as noted in the judgment of (Parimal Chandra Raha) (supra) holds the field and is binding on the (iv) (1995-III (Suppl.)-LLJ-166) (SC) (supra). That was a case where the Supreme Court pointed out that the employees in the statutory canteens are entitled to the status of Railway employees and they cannot be deprived of that status merely because some other employees similarly or dissimilarly situated may also claim the same status. The employees in the Non-statutory Recognized Railway Canteens are entitled to be treated on par with the employees in the statutory canteens and they should also be treated for all purpose as railway servants. The Supreme Court further pointed out that there is hardly any difference between the Statutory Canteens and Non-statutory Recognised canteens. The only material difference between the statutory Canteen and Non-Statutory recognized canteen is that while one is obligatory under the said Act (Factories Act) the other is not. However, there is no difference in the management of the two types of canteens. It was further pointed out that a classification made between the employees of the two types of canteens would be unreasonable and will have no rational nexus with the purpose of the classification. The Supreme Court held that surely it cannot be argued that the employees who otherwise do the same work and work under the same conditions and under a similar management have to be treated differently merely because the canteen happens to be run at an establishment which employs 250 or less than 250 members of the staff. The smaller strength of the staff may justify a smaller number of the canteen workers to serve them. But that does not make any difference to the working conditions of such workers. However, the Supreme Court pointed out that the workers in the non recognized Railway Canteens are not entitled to claim the status of Railway servant. Incidently that also is a judgment by 3 Judges as in the R.B.I. case (supra). So, by following the decisions (sic) I hold that the petitioners are entitled to get the status of sub-staff in the Bank. Further, I find that there is no justification that the employees of amalgamated Bank should get this benefit and the employees of the parent Bank shall not get that benefit. The admitted position is that similarly situated persons of the amalgamated Bank i.e. Purbanchal Bank have been given the benefit, but the petitioners have been deprived of it.
6. In that view of the matter, this writ application is allowed and it is directed that the Respondent-Bank shall do the needful to give the status of sub-staff to the petitioners within a period of three (3) months from the date of receipt of this order. The respondent Bank also shall do the needful to give necessary rational benefit with regard to seniority etc. from the date of their initial engagement. But these employees shall not be entitled to any back wages on that count. That only shall be counted towards seniority in service and other benefits. The petitioners shall obtain the certified copy of this order and shall produce the same before the authority to do the needful in terms of the order. I make no order as to costs.