Kerala High Court
Bharat Petroleum Corporation Limited vs The General Secretary on 2 August, 2017
Author: Devan Ramachandran
Bench: P.N.Ravindran, Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 2ND DAY OF AUGUST 2017/11TH SRAVANA, 1939
WP(C).No. 29022 of 2006 (E)
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PETITIONER(S) :
-------------------------
BHARAT PETROLEUM CORPORATION LIMITED,
KOCHI REFINERY, AMBALAMUGAL-682 302,
REPRESENTED BY ITS DY. GENERAL MANAGER (PERSONNEL),
MR.S.VIJAYAKUMAR.
BY SRI. J.P.CAMA (SENIOR ADVOCATE)
ADVS. SRI.P.BENNY THOMAS
SRI.D.PREM KAMATH
RESPONDENT(S) :
----------------------------
1. THE GENERAL SECRETARY,
COCHIN REFINERIES EMPLOYEE'S CONSUMER
CO-OPERATIVE SOCIETY CANTEEN EMPLOYEES UNION,,
AMBALAMUGAL- 682 302.
2. THE PRESIDENT,
COCHIN REFINERIES EMPLOYEE'S CONSUMER
CO-OPERATIVE SOCIETY LTD. NO. E. 226,
AMBALAMUGAL-682 302.
3. THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT,
ERNAKULAM.
..2/-
..2..
WP(C).No. 29022 of 2006 (E)
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* ADDITIONAL R4 IMPLEADED
4. ABOOBACKER A.K,
AGED 57 YEARS, S/O. KUNJUMUHAMMED,
ELAMANA HOUSE, MANAKAPADY, ASOKAPURAM, ALUVA,
ERNAKULAM DISTRICT.
* ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 02.08.2017
IN I.A.NO. 13422 OF 2016
R1 BY ADV. SRI.C.ANIL KUMAR
BY ADV. SRI.A.JAYASANKAR
R2 BY SRI.K.JAJU BABU (SENIOR ADVOCATE)
ADV. SRI.C.ARUN PRASANTH
ADV. SRI.PAULSON C.VARGHESE
R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
ADDL.R4 BY ADVS. SRI.K.S.ARUN KUMAR
SMT.RESMI THOMAS
BY ADV.SRI.P.RAMAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02-08-2017, ALONG WITH W.P(C).NO. 14288 OF 2017 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 29022 of 2006 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1: TRUE COPY OF THE EXTRACT OF RULES 91 TO 97 OF
THE KERALA FACTORIES RULES, 1957.
EXHIBIT P2: TRUE COPY OF THE CLAIM STATEMENT FILED BY
THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT
DATED NIL JULY,1998.
EXHIBIT P3: TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE PETITIONER BEFORE THE 3RD RESPONDENT DATED NIL
SEPTEMBER, 1999.
EXHIBIT P4: TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE 2ND RESPONDENT BEFORE THE 3RD RESPONDENT
DATED 29.02.2000.
EXHIBIT P5: TRUE COPY OF THE AWARD OF THE 3RD RESPONDENT IN
I.D.NO. 17/06 DATED 02.08.2006.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R1(A): TRUE COPY OF LETTER DATED 10.11.2013 OF THE JOINT
REGISTRAR OF CO-OPERATIVE SOCIETIES TO
THE REGISTRAR OF CO-OPERATIVE SOCIETIES.
EXHIBIT R1(B): TRUE COPY OF REPLY DATED 03.06.2014 RECEIVED FROM
THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
EXHIBIT R1(C): TRUE COPY OF STATEMENT SUBMITTED BY
THE REGISTRAR OF CO-OPERATIVE SOCIETIES BEFORE
THE HUMAN RIGHTS COMMISSION.
EXHIBIT R2(A): TRUE COPY OF THE AUDIT CERTIFICATE FOR
THE PERIOD 1994-1995.
EXHIBIT R2(B): TRUE COPY OF THE AUDIT CERTIFICATE FOR
THE PERIOD 1998-1999.
EXHIBIT R2(C): TRUE COPY OF THE LATEST SETTLEMENT EXECUTED
ON 17.08.2015, BETWEEN THE 1ST RESPONDENT UNION
AND SOCIETY.
//TRUE COPY//
P.S.TOJUDGE.
Msd.
C.R.
P.N.Ravindran & Devan Ramachandran, JJ.
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W.P.(C)Nos.29022 of 2006, 14288,
16650 & 18716 of 2017
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Dated this the 2nd day of August, 2017
JUDGMENT
Devan Ramachandran, J.
Modern Jurisprudence has many dimensions and labour law occupies a prominent place as is evident from the profusion of judicial precedents in the area of statutes and regulations relating to labour.
2. Industrial jurisprudence is not static, rigid or cold, but is dynamic and warm - the jurisprudence is wide and its sweep comprehensive.
3. We are a socialist republic and as is the preamblular imperative, the rights and entitlements of working class is of paramount importance in ensuring the constitutional articulation on human rights and protection of working masses. Labour is not to be treated as a mere commodity, but as a real partners in industrial management.
WPC 29022/06 & con. cases 2
4. Judicial interpretation is to be made as far as possible for the fulfillment of such rights and not to their frustration in any manner whatsoever manner.
5. We have alluded to the fundamental principles above since we are, in this case, called upon to consider and decide the correctness of the award passed by the Central Government Industrial Tribunal-Cum-Labour Court, Ernakulam ('the Tribunal' for brevity), declaring that the employees engaged in the canteen run and operated by the erstwhile Kochi Refineries Ltd. (for short 'KRL') which was amalgamated with the Bharat Petroleum Corporation Limited ('BPCL' for convenience), are entitled to be regularised into full service under them.
6. While we proceed to assess the correctness or otherwise of the award, we are fully cognizant that while the workmen deserve protection of all their legitimate rights, they cannot under such colour, claim or be entitled to benefits that are not eligible to them. Among the above writ petitions, W.P. (C).No.29022/2006 has been placed for consideration of a Division Bench and is thus before us based on an Order of WPC 29022/06 & con. cases 3 Reference made by the learned Single Judge dated 19.07.2012. The learned Judge made the order taking note of the various judgments covering the field of employment in statutory canteens and finding an apparent dissonance in some of the judgments with respect to the status of the workmen and particularly as to the question if such workers would become the employees of the management running the canteen even though they are working under a contractor entrusted for operating it. As far as W.P.(C).Nos.14288/2017, 16650/2017 and 18716/2017 are concerned, they are filed by individual employees who claim to be the members of 'Kochi Refinery Employees Canteen Co-operative Society Union' asserting that they have a right to continue in service until the age of 60 years on the strength of the award of the Industrial Tribunal declaring them to be eligible for regularisation in the services of the BPCL.
7. First, an apercus of the most essential and constitutive facts:
8. The petitioner, BPCL-Kochi Refinery (formed consequent to the amalgamation of KRL with BPCL) is a WPC 29022/06 & con. cases 4 Central Government Company registered under the Companies Act,1956 having its registered office in Mumbai. According to them, they are engaged in the manufacture and sale of motor and aviation spirit, diesel oil, kerosene oil etc. They say that consequent to the merger of KRL with BPCL, the Refinery is now part of the petitioner Company. It is the case of the petitioner that KRL was established in the year 1967 and that soon thereafter, with an intention to provide the best facilities, including that of the canteen, to their workmen, they had established a co-operative society known as the Cochin Refineries Employees Consumer Co-operative Society ('the Society' for brevity), the second respondent herein. The petitioner says that the Society was initially registered under the Travancore Cochin Literary, Scientific and Charitable Societies Act, 1955 and subsequently, under the Kerala Co-operative Societies Act (KCS Act), consequent to its enactment in the year 1969. The bye-laws of the Society available on record, show that its primary object is to establish and maintain canteens and restaurants for the benefit of its members. The Society was incorporated by the workmen of WPC 29022/06 & con. cases 5 the KRL and until 1994 it had representation of the management of the KRL on the its Board through its nominated Officers. From the year 1994, consequent to an amendment to the bye-laws, the nomination from the management of the KRL into the Board of the Society was done away with and the Society became fully managed and controlled by its members, who were also employees of the KRL.
9. The genesis of the controversy in this case is in the claim raised by certain employees of the Society, which was entrusted by the erstwhile KRL under and agreement/contract to run its canteens, operated under the mandate of Section 46 of the Factories Act, 1948 ('the Factories Act' for brevity). Under the prescription of this provision, establishments covered by it through a statutory notification, are expected and enjoined to provide a canteen to its employees, to be operated as per the requirements of the Rules under it, namely, the Kerala Factories Rules, 1957 ('the Factories Rules' for brevity). The employees of the Society were recruited and appointed by them for the purpose of working in WPC 29022/06 & con. cases 6 the canteens of the KRL under the arrangement it has with the KRL by which the Society would run the canteen on a day-to- day basis under the supervision of the competent authorities of the KRL.
10. The employees of the Society, who are asserted to be working in the canteen for a long period of time, began to clamour for regularization in the KRL on the avowal that though they are technically under the employment of the Society, they are de facto employed by the canteen, which was obligated in the Factories Act to be run by the KRL as a statutory one and therefore, that they should either be deemed to be employees of the KRL or that they are entitled for regularization in the services of the KRL, once the veil of the ostensible agreement between the KRL and Society is lifted. In effect, the claim of the employees was that since they have been employed by the Society in a canteen that had been run statutorily by the KRL, they should be deemed to be employees of the latter and if that is found not so, then that they are, at the least entitled for regularization because of the fact that they have been continuing to work in the canteen for WPC 29022/06 & con. cases 7 long periods of time under the control and directions of the KRL.
11. It appears that in the year 1997, more than 31 years after the formation of the Society, a demand was raised by the first respondent Union, claiming to represent the workers engaged in the canteen, to regularize their services under the KRL. When this was not acceded to, a reference was made by the Government of India under the provisions of Section 10 of the Industrial Disputes Act ('the ID Act' for brevity) to the Central Government Industrial Tribunal ('the Tribunal' for convenience) as under:
"Whether the demand of the C.R.E.C.C.S. Canteen Employees' Union for regularizing the services of 63 canteen employees under the management of M/s Cochin Refineries Ltd., is justified? If so, what relief are the concerned workmen entitled?"
12. Once such reference was made by the Government to the Tribunal, a claim was raised by the Union on behalf of their members, which has been marked by the Tribunal on its files as Exhibit P1. Since the hypostasis of the claims of the Union and the workmen can be best assessed only on a proper evaluation of the statement of claim made before the Tribunal, WPC 29022/06 & con. cases 8 we deem it necessary to read the same in its full and we, therefore, extract the whole claim statement as under:
"1. The issues referred for adjudication to this Hon'ble Court is "whether the demand of the CRECCS Employees Union for regularizing the services of 63 Canteen Employees under the Management of M/s Cochin Refineries Ltd., is justified? If so, to what relief the concerned workman are entitled?
2. The Union represents the employees working in the Canteen attached to the 1st Management company. The 1st Management is a Government of India enterprise and the Central Government is holding 61% of its paid up share capital.
3. As per Section 46 of the Factories Act, 1948, the 1st Management has to maintain a canteen for the benefit of its workers. The company has been extending all infrastructural facilities as provided in the Factories Act and Rules, the the 2nd Management Society to run the canteen. The 2nd Management is to a Co-operative Society which was originally registered on 24.6.1966 under the Travancore Cochin Co-operative Societies Act, 1951 and later on brought under the purview of the Kerala Co-operative Societies Act, 1969. As per the bye-laws of the 2nd Management its declared objectives include "the establishment and maintenance of canteens and restaurants for the benefits of members". The 1st Management started functioning in the year 1966 and from its very inception the canteen was entrusted to the 2nd Management Society.
4. Operation of the 2nd Management Society has been confined to the Management and workers of the first Management Company. Originally, majority of the directors was to be nominated by WPC 29022/06 & con. cases 9 the Company and the nominated Directors could not be removed from their offices even by the majority of the share holders of the Society. Initially the Canteen was run on the basis of the fixed subsidy provided by the Company for meals and snacks. On 24.05.1974 the 1st Management had fixed various terms and conditions regarding the operation of the canteen and the benefits to be extended by the Company.
5. As a matter of fact, the Management as well as the finance of the Society has been controlled by the 1st Management Company. The Company holds the shares of Society for Rs.5000/- which is the maximum holding permitted by its byelaws. In addition to this, huge amounts are being offered as interest free advance towards canteen expenditures. The Company provided accommodation, furniture, equipments, fittings utensils etc. for the use of the Society and undertook all major repairs thereto, free of cost, similarly L.P.G., water, electricity and washing and cleaning materials are provided by the Company. The Company had further made the vehicle available for the purchase of materials. The Society provides food to this employees of the Company at subsidized rates and the records pertaining to it are to be duly scrutinized by the Internal Audit Section of the Company. The Company Medical Officer checks the quality of the food served in the canteen and the general hygiene and issues necessary directions to the Society. The affairs of the canteen are supervised and controlled by the Catering officer appointed by the 1st Management Company. The Catering Officer is a well qualified, well experienced and well paid officer of the Company. He is expected to provide professional and supervisory in puts in order to ensure quality improvement, lost reduction and service effectiveness of the canteen. The duties of the Catering Officer include among other, the planning and deployment of staff to ensure timely WPC 29022/06 & con. cases 10 and quality service and also the training and development of canteen staff to ensure high standard.
6. There is deep and perversive control over the staff and running of the canteen by the 1st Management Company in several manner. The salary, allowances, overtime wages, Provident Fund Contributions, Medical expenses, leave enchashment, leave travel allowances, bonus etc. are being provided by the 1st Management as subsidy. Prior approval of the first Management Company should be obtained before any revision of salary, allowances, extra remuneration and benefits are granted or any increase in the number of employees in the various grades is effected. The recruitment standards of the canteen staff are fixed by the first Management Company. Even the uniforms of the canteen staff and laundering expenses are at the cost of the Management.
7. The workers of the canteen are being discriminated by the Management in respect of pay, allowances, leave and other benefits. They have been treated as employees of the Society and not as those of the Company. As already having been the employees of the canteen are controlled supervised and paid by the 1st Management and the 2nd Management is only a name lender. This Union demanded for the regularization of the canteen workers in the services of the 1st Management and that had resulted in the present reference. The canteen employees are entitled to be regularized in the services of the first Management Company, in view of the umpteen number of decisions of the Hon'ble Supreme Court. The 1st Management, being a public sector undertaking, ought to have regularized canteen employees imbiding the spirit of the Supreme Court Judgment. Unfortunately the 1st Management refused to do so and this Union is compelled to approach tis Hon'ble Court for the redressal of the grievances of the employees.
WPC 29022/06 & con. cases 11 It is most respectfully prayed that this Hon'ble Court may be pleased to pass an award directing the 1st Management to absorb the canteen workers in their services with effect from 30.03.1996, i.e., the date of complaint before the Regional Labour Commissioner and to pay all consequential benefits. "
13. The KRL filed detailed objections to the claim statement which led to an adjudication by the Tribunal, wherein, on the part of the Union, Sri.T.K.Paulose was examined as WW1 and on the part of the management two witnesses were examined as MW1 and MS2. Exhibits W1 to W41 were marked on the side of the Union and Exhibits M1 to M27(a) were marked on the side of the BPCL.
14. For the purpose of avoiding confusion, we will refer to KRL henceforth in this judgment as BPCL-KRL since it is admitted by all parties that after amalgamation all its assets and operations are now owned and managed by the BPCL-KRL.
15. After an evaluation and assessment of the evidence on record and the documents admitted as evidence, the Tribunal concluded that the arrangement between the Society and the BPCL-KRL for running the canteen was a sham one WPC 29022/06 & con. cases 12 and that the employees working in the canteen run by the BPCL-KRL, under the mandate of the the Factories Act, will have to be treated as employees of the BPCL-KRL and consequential directions were issued against them to absorb such workers in appropriate categories of posts under it. It was also ordered that in doing so, the relevant service rules of the BPCL-KRL, with regard to the qualification and age of recruitment will have to be relaxed since the canteen workers were seen to have put in long years of service. The award was ordered to take effect one month after its publication in the official gazette.
16. The petitioner BPCL-KRL, being aggrieved by the terms of this award has filed W.P.(C).No.29022/2006. We are considering this writ petition along with the above three writ petitions also, since all of them involve similar facts and circumstances and are dependent upon the fate of our verdict in W.P.(C).No.29022/2006, since the other three writ petitions have been filed by the employees of the Society individually seeking reliefs based on the award of the Tribunal which in WPC 29022/06 & con. cases 13 impugned in W.P.(C).No.29022/2006. For the purpose of convenience, we treat W.P.(C).No.29022 of 2006 as the lead case and all reference to exhibits and parties in this judgment will be as is available in the said writ petition, unless otherwise specifically mentioned.
17. We have heard Sri.J.P.Cama, learned Senior Counsel, assisted by Sri. Benny P. Thomas appearing on behalf of BPCL-KRL in all these cases, Sri. G.Hariharan, learned counsel appearing for the petitioner in W.P.(C). Nos.14288/2017 and 18716/2017; Sri.K.C.Santhoshkumar, learned counsel appearing for the petitioner in W.P.(C). No.16650/2017; Sri.P.Ramakrishnan, learned counsel appearing for the Union in all these cases; Sri.Jaju Babu, learned Senior Counsel assisted by Sri.Paulson C. Varghese, learned counsel appearing for the Society in all the cases and the learned Assistant Solicitor General of India for the Tribunal.
18. The primary contentions of the learned counsel on either side, as is discernible from the pleadings and submissions before us are, in our view, broadly three.
WPC 29022/06 & con. cases 14
19. The first among them is whether the employees of the Society engaged to work in the canteen run by the BPCL-KRL under the provisions of Section 46 of the Factories Act would be axiomatically deemed to be the employees of the BPCL-KRL; second is whether the Society is only a name lender and whether the employees are actually selected and recruited by the BPCL-KRL but under the name of the Society and thus guilty of unfair labour practices; and third is whether even if it is found that the workers employed in the canteen by the Society are in fact under the direct control of the BPCL-KRL, their regularisation, as is now ordered by the Tribunal in the impugned award, would be permissible in law specially in view of the ratio in Secretary, State of Karnataka and others v. Umadevi and others ((2006) 4 SCC 1).
20. In addition to the above, Sri.J.P.Cama, learned senior counsel appearing for the BPCL-KRL has raised two additional specific contentions that the reference made by the Union of India is not competent and even assuming it to be competent, that its terms are not of such kind that would have WPC 29022/06 & con. cases 15 permitted the Tribunal to go into the question whether the contract between the BPCL-KRL and the Society, for running the canteen, is sham or to thus consequently order regularisation of the employees can claim regularisation.
21. Quad hoc the issue whether the employees working in the canteen operated by the BPCL-KRL under the prescription of the Factories Act would be deemed to be their employees, notwithstanding that they are the employees of the Society, Sri.Cama, learned senior counsel submits that this issue has been answered and settled by the Hon'ble Supreme Court of India in Balwant Rai Saluja and another v. Air India Ltd. and others [(2014) 9 SCC 407] against such a claim and that such employees will not obtain the status of employees of the principal employer.
22. Sri.P.Ramakrishnan, learned counsel for the Union, in contrario sensu, vehemently submits that the large number of precedents covering this field would justify the award of the Tribunal and that the conclusions reached by the Tribunal is completely tenable and competent. Sri.Ramakrishnan referred WPC 29022/06 & con. cases 16 to Saraspur Mills Co.Ltd. v. Ramanlal Chimanlal and others ((1974) 3 SCC 66), Hussainbhai v. Alath Factory Thozhilali Union ((1978) 4 SCC 257), M.M.R.Khan and others v. Union of India and others (1990 supp SCC 191), Parimal Chandra Raha and others v. Life Insurance Corporation of India and others (1995 supp (2) SCC 611) Steel Authority of India Ltd. and others v. National Union Waterfront Workers and others ((2001) 7 SCC 1). His contentions, based on these judgments, were that the employees engaged by a management in a canteen run by them under the prescription of the Factories Act can only be deemed to be employees of the management notwithstanding that the canteen is being run through the agency of a contractor.
23. We have considered the dialectical submissions. However, we are persuaded that in view of the judgment of the Hon'ble Supreme Court in Balwant Rai Saluja (supra), most of the submissions of Sri.P.Ramakrishnan would now require no detailed consideration since the Hon'ble Supreme Court has considered the impact of the judgments referred to WPC 29022/06 & con. cases 17 by him and has answered and concluded firmly that the employees engaged in a canteen run by a management under the mandate of Section 46 of the Factories Act, would not be its employees for all purposes but only for the limited purposes under the said Act and no more. Their Lordships have declared the law with great amount of clarity that such employees would not be employees of the management with reference to recruitment, seniority, promotion, retirement benefits etc., which will continue to be governed by other applicable Statutes, Rules and contractual policies and that the only right that they would obtain is to be deemed as employees strictly for the purposes and under the requirements of the Factories Act, 1948.
24. Their Lordships had considered each of the judgments referred to by Sri.Ramakrishnan and found, on an assessment of the extant law, that the reasoning of the court in Saraspur Mills (supra) in holding that the workers of a canteen run by the contractor to be employees of the company, was in view of the amended expansive definition of 'employer' and 'employee' as found under the Bombay WPC 29022/06 & con. cases 18 Industrial Relations Act. Their Lordships found that since no such expansive definition is found either in the Factories Act or in the facts of that case, it would not be proper to place reliance on the given case as a precedent. Referring to Hussainbhai (supra), the Hon'ble Supreme Court found that the said case did not deal with the Factories Act, 1948 much less any statutory obligation thereunder. Their Lordships saw that the case proceeded on the test of employer-employee relationship to ascertain the actual employer and that the court had given paramount weight in consideration of the concept of economic control in this regard. Their Lordships, therefore, found that Hussainbhai (supra) also would not be available as a precedent in aid of the claim that canteen employees would automatically become or should be deemed to be the employees of the management.
25. Coming to the judgment in M.M.R.Khan (supra), the Hon'ble Supreme Court considered the particular facts involved therein as also the conclusions of the Hon'ble Court in the said judgment and found that the ratiocination of the WPC 29022/06 & con. cases 19 court, as is recorded in the said judgment, was based on the Railway Establishment Rules and the relevant administrative instructions issued by the Government of India, under which it was made mandatory that complete administrative control of the canteen be given to the railway administration. The Hon'ble Court in Balwant Rai Saluja (supra) thus concluded that the judgment in M.M.R.Khan (supra) was delivered on account of this peculiar condition in the Railway Establishment Rules and that it would not in any manner grant an imprimatur to a view that employees engaged in a statutory canteen would be automatically deemed to be employees of the management.
26. In Parimal Chandra Raha (supra), it is true that the Hon'ble Supreme Court had made a general observation that because the provisions of the Factories Act which statutorily obligated the employer to provide and maintain a canteen for its employees, the canteen would become a part of the principle establishment and, consequently, that the workers employed in such canteen would be deemed to be employees of the said establishment. The Hon'ble Supreme WPC 29022/06 & con. cases 20 Court, while considering this issue in Balwant Rai Saluja (supra), however, found that such conclusions in Parimal Chandra Raha (supra) were entered laying emphasis on the contract between the Corporation and the contractor wherein it was shown that the terms of the said contract were in the nature of directions to the contractor about the manner in which the canteen should be run and canteen services to be rendered to the employees. The conclusions in Parimal Chandra Raha (supra) were also because it was found that the majority of the workers had been continuously working in the canteen for a long periods of time even though the intermediaries/contractors were changed on numerous decisions. The Hon'ble Court, therefore, in Balwant Rai Saluja (supra) held that Parimal Chandra Raha (supra) can also not be construed as a precedent to hold that canteen employees in all cases would automatically become employees of the establishment.
27. In fact, Parimal Chandra Raha (supra) was referred to by the Hon'ble Supreme court in an earlier WPC 29022/06 & con. cases 21 judgment in Indian Petrochemicals Corporation Ltd. and another v. Shramik Sena and others ((1999) 6 SCC 439) which was decided by a Bench of co-ordinate strength and it was concluded ineluctably therein that employees of a canteen could be deemed to be workers not for all purposes but only for the limited purposes under the provisions of the Factories Act. We notice that a similar view has been accepted by the Hon'ble Supreme Court in several cases thereafter including in Haldia Refinery Canteen Employees Union and others v. Indian Oil Corporation Ltd. and others ((2005) 5 SCC
51), State of Karnataka and others v. KGSD Canteen Employees' Welfare Assn. And others ((2006) 1 SCC 567) and Barat Fritz Werner Ltd. v. State of Karnataka ((2001) 4 SCC 498). In Haldia Refinery Canteen Employees Union (supra), the Honourable Judges referred to Parimal Chandra Raha (supra), M.M.R.Khan (supra) and Indian Petrochemicals Corporation Ltd. (supra) on the question as to whether the establishment could be seen to be holding complete control over the society and its employees while deciding whether their regularisation or absorption would be WPC 29022/06 & con. cases 22 legal or otherwise. We will consider those issues however in this judgment along with the question as to whether the employees are entitled to relief of regularisation in the services of BPCL-KRL.
28. While deciding whether the employees should be deemed to be workmen under the BPCL-KRL merely because they were employed in the canteen run and operated by the BPCL-KRL, under the provisions of the Factories Act, we are certain that we are bound by the various precedents of the Hon'ble Supreme Court, including Balwant Rai Saluja (supra) and we have, therefore, no other option but to conclude that no such general deeming is possible in all cases and that the employees of a canteen run statutorily by a management would not automatically be construed to be employees of such canteen or of such management. The submission of Sri.Ramakrishnan to that extent deserves to be repelled and we have no other option but to do so.
29. Once we thus hold that the members of the Union cannot claim to be deemed as employees of the BPCL-KRL solely because they are working in the statutory canteen WPC 29022/06 & con. cases 23 obligated to be run by them, it takes us to consider whether in the facts and material available before this Court, including the evidence led before the Tribunal, whether the members of the Union who claim to have been working in the canteen run by the BPCL-KRL for a long period of time would obtain competence to claim that they should be absorbed or regularised in service on account of such employment being directly and effectively under the control of BPCL-KRL.
30. We are aware that under the provisions of the Industrial Disputes Act, an unfair labour practice, which is defined in the Vth schedule of the Act, would also take in cases where an employer employs workmen, badless, casuals or temporaries and continue them as such for years with the object of depriving them of the status and privileges of permanent workmen.
31. The claim petition extracted by us in full ut supra would show that the claim of the workmen, as voiced through the Union, is that the Society which employs them is only a name lender and that they are, in fact, employed by the management of the BPCL-KRL and therefore, ought to be WPC 29022/06 & con. cases 24 regularised in the service of the BPCL-KRL. As is indubitable from the claim made by the Union, they assert that they represent the employees working in the canteen attached to the BPCL-KRL.
32. In furtherance of the claim various submissions are made before us on behalf of the Union. They begin by pointing out that the Society was incorporated singularly for the purpose of maintenance of canteens and restaurants for the benefit of its members, who are all employees of the BPCL-KRL. They allege that the Board of Management of the Society is fully and effectively controlled by the BPCL-KRL and that the company provides all logistical and infrastructural facilities for the canteen including accommodation, furniture, equipments, fittings, utensils etc. as also the unexpendable services like water, electricity and cleaning services. They further assert that the company provides vehicles to the society for facilitating purchase of provisions and other raw material and that the Society provides food to the employees of the BPCL-KRL at subsidised rates, which are then scrutinised by the internal audit section WPC 29022/06 & con. cases 25 of the BPCL-KRL and that payments are then made by the BPCL-KRL to the Society against the subsidy account to the Society. They, therefore, maintain that there is deep and perversive control over the employees and the running of the canteen by the BPCL-KRL and that all the eligible allowances, salary, over time wages, provident fund contributions, medical expenses, leave encashment, leave travel allowances, bonus etc. are being provided by the BPCL-KRL to the employees of the canteen but charged to the subsidy account. They also allege that the approval of the company is required to be obtained by the Society for any revision of salary, allowances, extra remuneration or any other benefits to its employees and that the recruitment standards of the employees, engaged by the society in the canteen, are also fixed and controlled by the BPCL-KRL. On the basis of these assertions, the Union complains that the workers employed in the canteen are being discriminated in as much as that they are not offered the pay, allowances, leave and other benefits as has been offered to their regular employees. This is the factual foundation on which the claim is built.
WPC 29022/06 & con. cases 26
33. The Tribunal proceeded to evaluate these claims first by examining whether the agreement between the BPCL-KRL and the Society, namely Exhibit M8 marked in evidence, is sham and whether the operations of the canteen are being run by the BPCL-KRL directly, the Society merely being a name lender, as was alleged by the union. The Tribunal went at length, relying on several judgments in the field of contract labour to conclude that the arrangement between the Society and the BPCL-KRL is not sustainable in law and that the said arrangement was designed and intended to deprive the employees their legitimate employment with the BPCL-KRL. The Tribunal, therefore, concluded that this amounted to an unfair labour practice and that these workers are employed by the society only as a name lender for the BPCL-KRL and axiomatically entitled to regularisation. The Tribunal has also found, after relying extensively on the provisions of the Contract Labour Abolition Act, that the employment of the employees by the Society in the canteens run by the BPCL-KRL is in the nature of a contract labour and, therefore, that the arrangement between them is only a facade WPC 29022/06 & con. cases 27 and not genuine.
34. After thus finding the contract between the BPCL-KRL and the Society to be not genuine, the Tribunal entered into an expansive investigation into the various exhibits that were marked to conclude that the BPCL-KRL has complete and overriding control over the employees working in its canteen. For this purpose, the Tribunal referred to Exhibit W5(a) - which is a leave application of certain Sri.K.S.John, Exhibit W7(a) - a medical claim settlement of Sri.V.G.Shaji, Exhibit W8(a) - an application for incentives made by a certain Sri.N.B.Sajeevan, Exhibit W9 - an authorisation by the medical officer to reimburse medical claims of 21 employees of the canteen and Exhibit W9(a) - which is a sanction in respect of 9 other canteen employees by the medical officer of the company. The Tribunal found that all these exhibits related to benefits made available to the employees of the Society engaged in the canteen run by the BPCL-KRL. The Tribunal also went on to notice that loans of all kinds like housing loans, vehicle loans etc. are sanctioned and disbursed by the BPCL-KRL to the employees in the WPC 29022/06 & con. cases 28 canteen and not by the Society and that title deeds accepted as security for such loans are submitted through the Society to the BPCL-KRL which are scrutinised, processed and approved by the BPCL-KRL and loans thereafter sanctioned by them. The admission of MW1 in this regard was relied upon by the Tribunal as also Exhibit W8, which is a forwarding letter of the president of the Society to the BPCL-KRL forwarding certain applications of canteen employees for cycle and scooter loans. Similarly, Exhibit W10, a request made by the general manager of the BPCL-KRL to the IOC revalidating the order for LPG connection to a certain C.P.Varghese, stated to be a canteen employee; Exhibit W10(a) which is an order of the IOC granting priority for some other canteen employees and Exhibit W11 requisition of BPCL-KRL relating to a certain Subramanian with respect to his LPG connection were taken by the Tribunal to conclude that the BPCL-KRL was fully in charge over the canteen employees. The Tribunal, therefore, seems to have been persuaded to hold that when the management of BPCL-KRL was controlling all the service benefits and conditions of service of the employees of the WPC 29022/06 & con. cases 29 Society, who are so engaged in the canteen, then it should be presumed and deemed that the BPCL-KRL has complete and all perversive control over the employees itself, thus leading to an inference that they are, in fact, working under the BPCL-KRL directly but through a name lender, namely the Society.
35. Added to the above, with respect to the appointment and recruitment of the canteen employees, the Tribunal noticed that Exhibit W18 is an advertisement issued by the BPCL-KRL inviting applications for the post of catering officer and Exhibit W19 is a letter issued by the Society to the BPCL-KRL for approval of the selection of two persons as Assistant Manager, catering and canteen supervisor respectively. These documents were accepted by the Tribunal to fortify its holding that the BPCL-KRL has complete and total control even over the recruitment of employees made by the Society and thus entered into an opinion that the Society cannot be heard to say that it is acting independently as a contractor engaging its own employees to run the canteen owned by the BPCL-KRL. Several other documents were also WPC 29022/06 & con. cases 30 taken to account by the Tribunal, namely Exhibits W12, MW14, W17, W25, M24 etc., wherein certain benefits or privileges were extended to the canteen workers or to the society by the BPCL-KRL including for certain specific allowances and facilities for usage of company transport and similar infrastructure. The Tribunal also found that the entire functioning of the canteen, from the time of purchase of the provisions and raw materials till the cost of meals and snacks are accounted by the Society under the head of subsidy are done by the BPCL-KRL under its supervision, control and approval. The Tribunal, based on the above factors and documents, appear to have been satisfied that the control of BPCL-KRL over its canteen is absolute and that the Society is only an agent, through which payment is effected and benefits implemented by the BPCL-KRL to the canteen employees.
36. Interestingly, the Tribunal has also proceeded to hold that the statutory control by the Registrar of Co-operative societies over employees of the Societies is only nominal and the actual control is with the BPCL-KRL. This opinion appears to have been arrived at based on the factors noticed by it in WPC 29022/06 & con. cases 31 this regard, namely that the staff of the canteen is selected through tests which are conducted by the BPCL-KRL and that the staff strength of the Society can be increased only with the prior approval of the BPCL-KRL. The Tribunal, in favour of this conclusion, also took factors like the periodical medical check up of the canteen employees done by the medical officer of the company and the medical reimbursement offered to them by the BPCL-KRL as sufficient evidence. The Tribunal drew strength in this view by taking note of the fact that from the year 1967, when the Society was formed, its Board of Directors consisted of 7 members of which 4 were nominated by the BPCL-KRL and that the President of the Society had to be selected from among the 4 nominated directors. The then bye-laws further provided the quorum for the Board of the Society to be 4 members, which led the Tribunal to think that the company, at that time, could do anything they wanted regarding the operation of the canteen since the Society was completely under its charge and command. It was basically in the background of the above factors and materials that the Tribunal has passed the impugned award directing the BPCL-
WPC 29022/06 & con. cases 32 KRL to absorb the canteen employees and to give them an appropriate post in their services.
37. Sri.J.P.Cama, learned senior counsel appearing on behalf of the BPCL-KRL makes his submissions against these directions on several layers. For the first, he says, ex arguendo, even assuming that the award be found valid, absorption or regularisation of the employees of the Society by the BPCL-KRL would fall foul of the specific directions of the Hon'ble Supreme Court in Uma Devi (supra). The learned senior counsel refers to paragraphs 15, 16, 43, 45, 46, 47, 49 and 51 of the said judgment and contends that the Hon'ble Supreme Court has found that any such attempt for regularisation or absorption of employees who were not appointed regularly would amount to an illegality. Sri.Cama shows to us that the Hon'ble Supreme Court has found that there is a clear distinction between regularisation and conferment of permanence in service jurisprudence and that it is a misconception to consider that regularisation means permanence. His specific submission is that if the initial appointment itself is in infraction of the extant law or if it is in WPC 29022/06 & con. cases 33 violation of the provisions of the Constitution such illegality cannot be remedied leading to regularisation. He says that ratification or regularisation is possible of an act which, though within the power and competence of the Authority, is issued in non-compliance of applicable procedure, it would attack the root of the appointment making regularisation impossible in law. He relies on the judgment in Uma Devi (supra) to assert that regularisation can never be said to be a mode of recruitment. Sri.Cama contends that the canteen employees in this case were, concededly, not appointed by the BPCL-KRL after following procedure, as was required and mandated by its service Rules and Regulations governing the various service posts in the BPCL-KRL. He predicates that it is virtually admitted that these employees were recruited by the Society under the provisions of the KCS Act or Rules and that they were engaged by the Society to work in the canteen under an agreement between the Society and the BPCL-KRL. He, therefore, says that when a person enters a temporary employment or gets engagement as a contract or casual worker and where the said engagement is not based on a WPC 29022/06 & con. cases 34 proper selection, the theory of legitimate expectation would not apply. He maintains that the canteen employees were well aware that they were not being appointed under the services of the BPCL-KRL but that they were being recruited for being employed by the Society on their rolls, when they were initially selected.
38. He, therefore, makes an impassionate plea, relying on paragraph 51 of Umadevi (supra), that the acceptance of a plea for regularisation or absorption at the instance of such irregularly appointed employees would lead to the deleterious consequence of depriving a large number of other aspirants and that their rights would stand denuded if preference is granted to those who got in casually or those who have come through back door.
39. The submissions of Sri.Cama as above are based on the virtually admitted position that the employees, who are now engaged by the Society in the canteen, are employees recruited by it under the Rules and regulations applicable for such appointment. Sri.Cama further asserts that the BPCL-KRL does not have any post in their hierarchy of posts WPC 29022/06 & con. cases 35 to engage or to accommodate persons like Cooks or Service personnel to be engaged in the canteens and that the Society was engaging their own workers for such purpose under a contract/ arrangement that it had entered with BPCL-KRL. He says, therefore, that the employees now working in the canteen cannot deemed to be employees appointed under the mandate of law in the service of BPCL-KRL and thus would only obtain the colour and nature of irregularly appointed personnel, who cannot claim regularisation under the terms of Umadevi (supra).
40. Sri.Cama, learned Senior Counsel now enters the second limb of his argument that even assuming that the employees of the Society were in any manner controlled or modulated by the management of the BPCL-KRL, they would not be deemed or be entitled to claim for regularisation with the BPCL-KRL. He contends thus on the irrefutable fact that the Society is controlled by a specific statute, namely the KCS Act and the Rules framed thereunder, as per which Societies have a distinct legal entity. He says that the observations of the Hon'ble Supreme Court in M.M.R.Khan (supra) were WPC 29022/06 & con. cases 36 made without adverting to this fact that the Societies in such cases are controlled by a specific and distinct statute and cannot, therefore, be found to be subsidiaries of the management owning the statutory canteens. He also says that the Hon'ble Supreme Court had subsequently in Union of India [Railway Board] and Others v. J.V.Subbaiah and Others ((1996) 2 SCC 258) referred to this obvious flaw in MMR Khan in paragraph 18 thereof, which reads as under:
"In other words, there is a dual control over the staff by the Society and the Registrar. In that behalf, the Railway Administration has no role to play. If the subsidy is considered to be a controlling factor and the Societies/Stores as an intervening agency or veil between the Railway Administration and the employees, the same principle would equally be extendible to the staff, teachers, professors appointed in private educational institutions receiving aid from the appropriate State/Central Government to claim the status of government employees. Equally, other employees appointed in other Cooperative Stores/ Societies organised by appropriate Government would also be entitled to the same status as government servants. Appointment to a post or an office under the State is regulated under the statutory rules either by direct recruitment or appointment by promotion from lower ladder to higher service or appointment by transfer in accordance with the procedure prescribed and the qualifications specified. Any appointment otherwise would be vertical transplantation into services dehors the rules. Appointment through those institutions becomes gateway for back-door entry into government service and would be contrary to the prescribed qualifications and other WPC 29022/06 & con. cases 37 conditions and recruitment by Public Service Commission or appropriate agencies. As contended, if the employees of the societies like cooperative canteens are declared to be Railway servants, there would arise dual control over them by the Registrar and Railway Administration but the same was not brought to the attention of the Court when M.M.R.Khan case was decided."
41. The learned Senior Counsel also refers to the various provisions of the KCS Act and Rules and contends vehemently that the Society is a body corporate under its provisions and therefore, that it cannot be said casually, as has been done by the Tribunal, that the agreement entered into by the BPCL-KRL with the Society for running the canteen is sham or not genuine. He says that under Section 5 of the KCS Act, a Society has to be registered and it is declared to be one with a limited liability. The provisions of Sections 6 and 7 of the KCS Act relate to the registration of such Society and Section 9 of the KCS Act declares unequivocally that such a Society shall be a body corporate. According to Sri.Cama, Section 27 of the KCS Act provides without any ambiguity that the final authority with respect to the Society is its Managing Committee and that it will be irrational and far-out to even suggest that the Society is a limb WPC 29022/06 & con. cases 38 of the BPCL-KRL because, under the various provisions of the Act, namely Chapters 4, 8, 9 and 12 of the KCS Act, Societies are under the supervisory control of the statutory authorities appointed therein and that the specific provisions designed for intendance by such authorities, including Sections 64 to 68A relating to enquiry, investigation and supervision of such Societies, cannot be whittled down by merely alleging that the BPCL-KRL has some kind of control or dominion over such Society. Sri.Cama contends that even if there is any such control by the management of BPCL-KRL over the Society it can only be subservient to the control and supervision to be maintained over it by the statutory authorities under the Act and, therefore, that the employees of the Society can never be deemed or construed to be that of another entity. He specifically refers to Chapter 12 of the KCS Act and points to Section 80 thereof which provides for the 'Establishment' relating to Societies and he contends that no employee under the Society can be appointed except under the terms of the said chapter and with the sanction of the Registrar concerned.
42. We notice that on behalf of the Society Sri.Jaju WPC 29022/06 & con. cases 39 Babu, learned Senior Counsel also maintains that the Society is a completely different legal entity and that it cannot in any manner be declared to be subservient to the control of the BPCL-KRL. He says that the workers employed by the society are their own workers, who they have engaged for the purpose of running the canteen, under the contract with the BPCL-KRL and therefore, that the finding of the Tribunal that such workers will be deemed to be the employees of the BPCL-KRL or should be absorbed or regularised by the BPCL-KRL would amount to virtually poaching and cold calling their employees. He also has a very interesting argument while proceeding on these lines and shows us that the members of the Society are all employees of the BPCL-KRL as per its bye-laws. Hence, according to him, if it is held that the employees of the Society would be employees of the BPCL-KRL then such employees will also axiomatically become the members of the Society. He says that if this is allowed, any employee who is taken into service by the Society would automatically become an employee of the BPCL-KRL and such person then would become the member of the WPC 29022/06 & con. cases 40 Society and this would thus create an unceasing continuum.
43. We find substantial force in the submissions of Sri.J.P.Cama and Sri.Jaju Babu, learned Senior Counsel, as above. The employees of the Society are certainly recruited by the Society, at least there is no case even for the Union that they were not so or that they were recruited directly by the BPCL-KRL. The statement of claims extracted above would ineluctably show that their specific claim is that the BPCL-KRL employs these employees through the agency of the Society and that they control the entire recruitment process. However, the documents on record and the evidence available would not justify this except that, at the best, it can be seen that BPCL-KRL has some kind of voice in the manner in which the Society goes on with its activities including recruitment. The recruitment is admittedly done by the Society and the employees so recruited are on its rolls and therefore, under the control of the statutory Authorities vested with the jurisdiction under the Act and Rules. Section 80 of the KCS Act provides for the Establishment relating to the Society and no employee can be appointed without following the mandate WPC 29022/06 & con. cases 41 under that Section and the Chapter into which it is included in. Since the Society is an incoporated entity, as pointed out by Sri.Cama, under Section 9 of the KCS Act, it is a totally distinct and different legal entity having no forensic relationship with BPCL-KRL in any manner or form. It will be difficult for us to presume, merely on surmises and the conduct of the BPCL-KRL relating to some of the employees of the canteen, that the Society should be deemed to be its subsidiary concern or that it should be seen to be subservient to its control. We cannot find so especially in view of the specific provisions of the KCS Act and Rules.
44. Even though we have noticed that the Tribunal, in the impugned award, found that from 1967 the management of the erstwhile KRL had control over the Board of the Society through nominations, it is pertinent that from the year 1994, after an amendment made to the bye-laws, such a control was never available because the practice of nomination of its officers to the Board has been completely discontinued. Therefore, at least from the year 1994, this reasoning of the Tribunal would not hold water and we have no information, WPC 29022/06 & con. cases 42 from the available records, as to when then 63 employees, whose claims have been impelled by the Union in this reference, entered the services of the Society or whether they were recruited when the nominated officers were on the Board of the society or thereafter. In the absence of such definite information and conclusive proof on these issues we are certain that the Tribunal erred in entering into an assumption that merely because there were some nominated members in the Board of the society until 1994, the employees recruited and appointed by the Society should be deemed to be that of the BPCL-KRL.
45. As we have already recorded above, the law is now well settled that the employees of a canteen run by the management statutorily under the provisions of the Factories Act would not be deemed employees automatically. The best that the employees can claim would be that they are being employed by the BPCL-KRL through the agency of a contractor in a vieled manner so as to deny them their legitimate rights as permanent workmen. However, for this purpose they will have to show that the contractor/society in WPC 29022/06 & con. cases 43 this case is susceptible to a complete administrative control of the BPCL-KRL. It will also be necessary to show that there exists employer-employee relationship between the BPCL-KRL and the workmen working in the canteen directly.
46. The above issues have also been lucidly answered by the Hon'ble Supreme Court in Balvanth Rai Saluja (supra)wherein their Lordships, after referring to several English judgments and to the judgments of the Hon'ble Supreme Court in Ram Singh v. UT, Chandigarh ((2004) 1 SCC 126) and in Bengal Nagpur Cotton Mills v. Bharat Lal ((2011) 1 SCC 635), settled the law that in determining the relationship of employer and employee, control is one of the important tests but that is not the sole test. In making such an assessment, their Lordships have stated that several other factors and circumstances are required to be considered, including the terms and conditions of the contract and that a multiple pragmatic approach weighing all factors for and against an employment is to be adopted, instead of going by the sole test of control. Their Lordships have postulated that an integral approach is needed and that if the WPC 29022/06 & con. cases 44 industrial adjudicator finds that the contract between the principal employer and the contractor to be sham or merely a camouflage for denial of employment benefits to the employee and that there was in fact a direct employment, it can grant relief to the employee.
47. Their Lordships have further prescribed that the two of the well recognised tests to find out such a direct connection is whether the principal employer pays the salary instead of the contractor and whether the principal employer controls and supervises the work of the employee. Referring to the judgment in International Airport Authority of India v. International Air Cargo Workers' Union ((2009) 13 SCC
374), which was delivered in the context of contract labour, the Hon'ble Court held that if the contract is for the supply of labour, necessarily, the labour supplied will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer if the salary is paid by a contractor, if the right to regulate the employment is with the contractor and the ultimate supervision and control lies with the contractor.
WPC 29022/06 & con. cases 45
48. Their Lordships further went on to restate the view in International Airport Authority of India (supra) regarding the control of the principal employer over the employees of the contractor as under:
"The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/alloted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/alloted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor."
49. The above principles were reiterated by the Hon'ble Supreme Court in the judgment in National Aluminium Co. Ltd. v. Ananta Kishore Rout ((2014) 6 SCC
756), wherein a similar issue was in seizin of the Court's attention. In that case, the Hon'ble Supreme Court saw that the day-to-day functioning of a school set up by the appellant therein was not under the National Aluminium Company WPC 29022/06 & con. cases 46 (NALCO) but under a different managing committee. The Hon'ble Court found that the said managing committee was a separate and distinct legal entity, which was solely responsible for recruitment, disciplinary action, termination, etc. of its staff. The Hon'ble Court, therefore, held that the employees therein could not be said to be employed by the NALCO.
50. Applying the ratio of the various precedents noticed by us above to the facts of the case at hand, the Society is certainly a distinct legal entity, as we have already seen, under the provisions of the KCS Act and Rules. It is incorporated under the Act as a legal entity and it is defined to be body corporate under Section 9 of the said Act. The bye-laws of the Society would clearly show that its members are the employees of the BPCL-KRL and that its primary objective is to manage and run canteens for the purpose of its members, namely the employees of the BPCL-KRL.
51. Sri.Cama, learned Senior Counsel further says that the idea of having a society to run the canteen must have been thought of by the management of the BPCL-KRL and its WPC 29022/06 & con. cases 47 workmen in the year 1967 taking into account the provisions of the Kerala Factories Rules, 1957. He refers to Rule 96(6) of the said Rules, which says that if the workers of a factory, in which a canteen has been provided by the occupier in accordance with Rules 91 to 93, decide to run the canteen by themselves on a co-operative basis of which the share capital is contributed by themselves, the management may permit them to run the canteen in accordance with the bye-laws of the Co-operative Canteen but subject to the conditions as the Chief Inspector under the Factories Act may, in consultation with the Registrar of Co-operative Societies, impose. Sri.Cama's specific submission is that going by Rule 96 of the Kerala Factories Rules, the workers, if they decide to run the canteen themselves, could constitute themselves into a co-operative society and such a society could thereafter run the canteen thus virtually it being run by the employees themselves. For such purpose if the Society, so formed, recruits and employs workmen or employees for iteself, it is certain, according to him, that such employees cannot, thereafter, stake claim to be employees of the management.
WPC 29022/06 & con. cases 48
52. The provisions of Rule 96(6) of the Factories Rules read as under:
"Where the workers of a factory in which a canteen has been provided by the occupier in accordance with rules 91 to 93 for the use of the workers, desire to run the canteen by themselves on a co-operative basis with share capital contributed by themselves, the management may permit them to run the canteen in accordance with the byelaws of the co-operative canteen, subject to such conditions the Chief Inspector may, in consultation with the Registrar of Co-operative Societies, impose."
53. It is, thus, luculent from the above provision that the management is empowered to allow the workers themselves to run the canteen as a co-operative canteen. These provisions have been made applicable to the erstwhile KRL as early as in the year 1967 under a notification No. 61791/H4/67/HLD dated 07.09.1967 issued by the Government of Kerala under the mandate of Rule 91. In fact, this was not noticed or brought to the attention of the Tribunal because what was marked in evidence was Exhibit W40, which is a notification dated 27.10.2000. However, this notification had been preceded by earlier ones, the first among them having been issued in 1967, mentioned supra, bringing the erstwhile KRL under the requirements of Rule 91 of the WPC 29022/06 & con. cases 49 Factories Rules. Once the prescriptions of Rule 96(6) had thus become operable to the BPCL-KRL, it was certainly within the discretion of the BPCL-KRL to allow the workers themselves to run the canteen. Mr.Cama's submissions, therefore, become relevant here since the BPCL-KRL had so allowed the Society to run the canteen and merely for that the employees of such a Society cannot thereafter claim that they should be construed as being the employees of BPCL-KRL.
54. Appropos the medical facilities provided by the BPCL-KRL to the employees of the canteen, Sri.Cama says that there is nothing unusual in this because, as per Rule 96A of the Kerala Factories Rules, annual medical examination and ensuring of hygene and fitness of each member of canteen staff, without reference to whether they are its own employees or otherwise, is an obligation cast upon the BPCL-KRL and that for such purpose routine blood examination, bacteriological testing and such other examinations, including chest X-ray will be required to be done periodically as is statutorily warranted. He says that the finding of the Tribunal that such facilities provided by the BPCL-KRL to the canteen WPC 29022/06 & con. cases 50 employees would establish that they are employees of the BPCL-KRL, is untenable, because these facilities are offered by the BPCL-KRL being obligated under the requirements and mandate of the Kerala Factories Rules, 1957. We certainly find force in these submissions, since the requirements under the Factories Act makes it an unavoidable compulsion on the BPCL-KRL to provide such medical and attendant services to all persons working in the canteen, be that directly appointed by it or working under a contractor, and this ipso facto would not enable a view that the canteen employees are direct employees of the BPCL-KRL.
55. Sri.Cama further submits that as regards payment of salary and other benefits are concerned, the employees of the canteen have been paid this only by the Society, financed by the bills raised by the Society and paid by the BPCL-KRL against a subsidy account.
56. The question that begs an answer here is whether the employees were paid their legitimate service benefits including salary by the BPCL-KRL directly. The answer, in our opinion, from an over view of the materials available, would WPC 29022/06 & con. cases 51 only be that they were paid and are continued to be paid by the Society and that they are under its administrative control as also the statutory supervisory mechanism under the KCS Act and Rules. We says this because we see that Exhibits M2, M15 to M18 are wage and salary settlements entered into by the employees with the Society from time to time. If, as has been contended by the Union, the employees were not being paid salary and other benefits by the Society but by the BPCL-KRL, there was no requirement for the employees to enter into such settlements with the Society and there was no need for the employees to submit themselves to such settlements with the Society. These factors, in our view, would cement the position that the employees are under the pay roll of the Society, as their employees and that they are under the disciplinary control of the Society, while being subject to the statutory supervisory jurisdiction of the authorities under the Act and Rules.
57. It is also pertinent that none of the employees concerned have placed on record their employment particulars or appointment orders or the terms of their WPC 29022/06 & con. cases 52 employment issued either by the Society or by the BPCL-KRL. This can only lead to the irrestable inference that their appointment was made by the Society and not by the BPCL-KRL since, had it been otherwise, such orders would have been the most relevant documents that the employees would have relied on in substantiation of their claim that they were appointed by the BPCL-KRL. Au contraire, the BPCL-KRL has produced on record Exhibit M11 series appointment orders, which would indicate, with a fair amount of certainty, that the canteen employees were, in fact, recruited and appointed by the Society and engaged by it for the work in the canteen run by BPCL-KRL. Further, there is not even a whisper of such a case for the Union in their claim statement and we have extracted the same earlier, so that it can be read in full, which would only justify what we have now recorded. In further force of their stand, the BPCL-KRL has also placed on record Exhibit M12 series which show instances of disciplinary action taken against the canteen employees by the Society for various acts of misconduct and transgressions found to be warranting such action and that the employees WPC 29022/06 & con. cases 53 had submitted to such action without even a demur that they are not the employees of the Society under the provisions of the KCS Act and Rules. These facts and documents are uncontroverted and thus would further justify and concede to the only inference as already recorded above that the employees engaged in the canteen of the BPCL-KRL are not their employees but are that of the Society.
58. Among the above writ petitions, W.P.(C)No. 29022/2006 has been placed for consideration of a Division Bench and is thus before us based on an Order of Reference made by the learned Single Judge dated 19.07.2012. The learned Judge made the order taking note of the various judgments covering the field of employment in statutory canteens and finding an apparent dissonance in some of the judgments with respect to the status of the workmen and particularly as to the question if such workers would become the employees of the management running the canteen even though they are working under a contractor entrusted for operating it. As far as W.P.(C)Nos.14288/2017, 16650/2017 WPC 29022/06 & con. cases 54 and 18716/2017 are concerned, they are filed by individual employees who claim to be the members of 'Kochi Refinery Employees Canteen Co-operative Society Union' asserting that they have a right to continue in service until the age of 60 years on the strength of the award of the Industrial Tribunal declaring them to be eligible for regularisation in the services of the BPCL-KRL.
59. Faced with the above, Sri.P.Ramakrishnan makes a further submission which is more or less analogous to his contentions regarding the control of the employees and the control of the Society by the BPCL-KRL and asserts that even if the employees are held to be that of the Society, the award of the Tribunal will still continue to hold vigor because the Society de facto acts only under the dictation of the management of the BPCL-KRL in matters relating to the canteen. He pleads that the veil of the corporate nature of the Society ought to be lifted which would then demonstrate that the distinct character of the Society and the BPCL-KRL, as has been pleaded by the learned Senior Counsel appearing for the BPCL-KRL, would stand completely effaced. According to WPC 29022/06 & con. cases 55 Sri.Ramakrishnan, because the Society, by the very nature of its constitution, is comprised only of the employees of the BPCL-KRL, that the management of the BPCL-KRL obtains complete and effective control over such employees and thus over the Society itself. In effect what Sri.Ramakrishnan contends is that the character of the Society as an independent legal entity is only a camouflage and that in effect it is merely acting as an extension of the BPCL-KRL relating to the canteen operated by the BPCL-KRL. In assessment of these pleadings, we do not require to travel far because the Hon'ble Supreme Court has, in the case of Vodafone International Holdings BV v. Union of India and another ((2012) 6 SCC 613) considered the legal relationship between a holding company and a wholly owned subsidiary to evaluate whether the latter could be treated as a part and as a mere extension of the former. Their Lordship's observations in the said judgment are as under :-
"The legal relationship between a holding company and WOS is that they are two distinct legal persons and the holding company does not own the assets of the subsidiary and, in law, the management of the business of the subsidiary also vests in its Board of WPC 29022/06 & con. cases 56 Directors. In Bacha F. Guzdar v. CIT [AIR 1955 SC 74] , this Court held that shareholders' only right is to get dividend if and when the company declares it, to participate in the liquidation proceeds and to vote at the shareholders' meeting. Refer also to Carew and Co. Ltd. v. Union of India [(1975) 2 SCC 79] and Carrasco Investments Ltd. v. Directorate of Enforcement [(1994) 79 Comp Cas 631 (Del)].
Holding company, of course, if the subsidiary is a WOS, may appoint or remove any Director if it so desires by a resolution in the general body meeting of the subsidiary. Holding companies and subsidiaries can be considered as single economic entity and consolidated balance sheet is the accounting relationship between the holding company and subsidiary company, which shows the status of the entire business enterprises. Shares of stock in the subsidiary company are held as assets on the books of the parent company and can be issued as collateral for additional debt financing. Holding company and subsidiary company are, however, considered as separate legal entities, and subsidiary is allowed decentralised management. Each subsidiary can reform its own management personnel and holding company may also provide expert, efficient and competent services for the benefit of the subsidiaries."
The doctrine of piercing the corporate veil, the Hon'ble Supreme Court has postulated, is an exception to the principle that a company is a legal entity separate and distinct with its own legal rights and obligations and under this concept the separate personality of the company are to be disregarded so as to find who are allegedly direct control of its operations. In WPC 29022/06 & con. cases 57 Balwant Rai Saluja (supra), the Hon'ble Supreme Court had gone to these areas in great detail and have held, after referring to various precedents holding the field that the exercise of piercing the corporate veil should be employed sparingly and only in a restrictive manner, where it is evident that the company was a mere camouflage or sham, deliberately created by the persons exercising control over the company for the purpose of avoiding liability. Their Lordships also said that the intent of piercing the veil must be such that would seek remedy of a wrong done by the persons controlling the company.
60. In the case at hand, we are required to ascertain whether the workmen engaged by the Society as a contractor to operate and run the statutory canteen can be said to be the workers of the BPCL-KRL by piercing the corporate veil. As we have noticed earlier in this judgment, the objectives of the Society does not have any direct relationship with the BPCL-KRL. Its primary objective is to run and manage canteens for its members who happen to be the employees of WPC 29022/06 & con. cases 58 the BPCL-KRL. The contention that the Society operates the canteen as a mere name lender because BPCL-KRL is obligated under the Factories Act to provide for such a canteen has already been answered by us in the earlier paragraphs of this judgment and the plea relating to the piercing of the corporate veil would become relevant only if there is any material before us to demonstrate that the canteen has been run by the BPCL-KRL using the Society as a shield against granting of the legitimate rights and entitlements of the workers employed in such canteen. As we have already seen, there is nothing on record to show that the BPCL-KRL has effective or absolute control over the Society and therefore, to even cause a suspicion that the Society is merely a facade between the BPCL-KRL and the workmen. The Society, is a corporate body under the provisions of the KCS Act and Rules and is established as an incorporated entity which cannot be found, in any manner, as being subsidiary or subservient to the BPCL-KRL. The management of the business of the Society is under its own Board of Directors, its control is exclusively held by its general body and is under the WPC 29022/06 & con. cases 59 supervisory authority and ambit of the statutory authorities vested with such jurisdiction under the provisions of the KCS Act and Rules. We do not therefore, think that the facts presented before us in this case would be one which would warrant any exercise at our hands for piercing the corporate veil, since we are cognizant that this can be exercised by courts only sparingly and in exceptional circumstances.
61. In any event of the matter, as has been stated by the Hon'ble Supreme Court in Balwant Rai Saluja (supra), for the purpose of piercing the veil of incorporation, mere ownership and control are not sufficient grounds. It should be established cogently that the actions and alleged impropriety by the Society or by the BPCL-KRL has resulted in depriving the employees of their legal rights. We do not see any such pleading having been made in the claim statement nor do we see any evidence lead by the Union in support of such a submission. We therefore, have no other option but to repel the submissions made by Sri.Ramakrishnan relating to the piercing of the corporate veil of the Society and we are certain in our mind that these two entities are distinct ones, governed WPC 29022/06 & con. cases 60 and controlled by different Statutory Authorities vested with jurisdiction over them.
62. It thus brings us to the two submissions made by Sri.Cama, learned Senior Counsel relating to the reference involved in this case. Sri.Cama, relying on two judgments of the Hon'ble Supreme Court, namely Tata Iron and Steel Company Limited v. State of Jharkhand and others [(2014) 1 SCC 536] and Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd. and another [(1979) 3 SCC 762] says that the Tribunal cannot go beyond the reference made to it and that the assessment of any issue or adjudication of the same in excess of the terms of the reference would be completely impermissible and illegal.
63. In Tata Iron and Steel Company Limited (supra), the Hon'ble Supreme Court found that the terms of reference in the said case were not appropriately worded in as much as it did not reflect the real dispute between the parties. In that case, the terms of reference made to the Tribunal appeared to presuppose that the workers involved therein are employees of the TISCO Limited. Their Lordships, on an WPC 29022/06 & con. cases 61 assessment of the terms of the reference, found that it is not reflective of the real dispute between the parties and that it only depicts the version of the respondent workmen and, in fact, accepts the same as if that is the only truth. Their Lordships, however, declared that even though the jurisdiction of the Tribunal is confined to the terms of reference, it is empowered to go into incidental issues and that had the reference been appropriately worded, probably it was still open to the appellant therein to contend and prove that the workmen ceased to be their employees.
64. In Pottery Mazdoor Panchayat (supra), their Lordships were concerned as to the nature of reference made by the Government to the Tribunal and it has been affirmed unequivocally therein that the Tribunal cannot go behind the reference and inquire into questions which were not directly referred to it.
65. The indubitable view of the Hon'ble Supreme Court in the afore two judgments is that the nature of enquiry to be held by the Tribunal will have to be strictly confined to the terms of the reference made and not in a roving or WPC 29022/06 & con. cases 62 investigative manner on other issues, except that are proximate and incidental.
66. Sri.Cama, learned Senior Counsel points to the reference in this case and submits that what was placed for consideration of the Tribunal was whether the demand of the canteen employees' Union for regularising the services of 63 canteen employees under the erstwhile management of KRL is justified. According to him, this reference is absolutely vague and is completely without the requisite clarity. He says that the reference speaks of "canteen employees" but does not say under whom they are employed. Sri.Cama vehemently maintains that the employees concerned having been employed by the Society could not have sought for regularisation in the service of the BPCL-KRL as if they were directly recruited by them. He says that the ambit of this reference is so narrow that the Tribunal could not have considered the validity or otherwise of the arrangement between the Society and the BPCL-KRL in running the canteen. He makes his submission with specific reference to the fact that the Tribunal has, in its impugned award, found WPC 29022/06 & con. cases 63 the arrangement between the BPCL-KRL and the Society to be sham and not genuine and according to the learned Senior Counsel, this conclusion of the Tribunal was completely impermissible looking at the terms of the reference made to it. It is to garner force for this submission that he has referred to the judgments above and he submits that all the that the Tribunal could have considered was whether the 63 canteen employees were entitled to get regularisation under Cochin Refineries Limited and nothing more.
67. We find that the submissions of Sri.Cama obtains substantial potency when the reference, been made by the Government to the Tribunal is read closely. All that the Government has asked the Tribunal is to assess whether the demand of the Union for regularisation of the services of the canteen employees under the management of BPCL-KRL is justified. Nothing else was put to the Tribunal. The Tribunal however went on into an investigation as to the arrangement between the BPCL-KRL and the Society and to then conclude that such arrangement was a sham, entitling the 63 canteen employees, who were concededly recruited and employed by WPC 29022/06 & con. cases 64 the Society for regularisation in the services of the BPCL-KRL. Pertinently, the reference did not mention anything regarding the Society and it is not even discernible from it that the Society was in any manner involved in the said dispute. However, what is important in this case is that it is the singular claim of the employees that they were engaged to work in the canteen run by the BPCL-KRL through the agency of the Society and they say that the Society is only a name lender. It is therefore, obvious that the Society is an absolute component of the dispute in question and if the employees had not been engaged by the Society then they would not even have obtained no claim for regularisation with the management of the BPCL-KRL. We, therefore, see that the submissions of Sri.Cama on these lines are worthy of our approval and we, therefore, are of the view that the Tribunal could not have gone into the validity or otherwise of the arrangement between the Society and the BPCL-KRL or to declare it to be a sham or otherwise.
68. The intrinsic problem in this case is that the WPC 29022/06 & con. cases 65 reference does not say who the 63 canteen employees had been employed by. It does not say that they are under the employment of the Society and it virtually insinuates that they are directly recruited by the BPCL-KRL. It is, therefore, that the reference asked the Tribunal whether the demand of the Union for regularisation of these canteen employees with the BPCL-KRL is justified. This makes it appear that the 63 canteen employees were directly recruited and employed by the BPCL-KRL in its canteen. The Tribunal, however, noticed that this was not so, but still proceeded to dissever the arrangement between the Society and the BPCL-KRL to then declare it to be a sham. This is not the way in which the reference was made to it and therefore, it would not have given competence to the Tribunal to consider these issues which are not even proximate or incidental to the main issue referred for its adjudication.
69. That being said, Sri.P.Ramakrishnan, learned counsel appearing for the Union, fervently submits that merely because pleadings may be lacking in the statement of claim made by the Union, this Court should not enter into a WPC 29022/06 & con. cases 66 conclusion to the detriment of the employees. He says that pleadings are not important in cases like this and that it is the spirit and the nature of the dispute which are to be looked into by courts while deciding such issues. We are afraid that these submissions of Sri.P.Ramakrishnan would not now find jural sustenance in view of the judgment of the Hon'ble Supreme Court in Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and another ((1979) 3 SCC 371). The emphatic declaration of law by their Lordships in the said judgment is that a party appearing before the Tribunal must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish facts, so as to invite a decision, it has to lead cogent evidence. It is also stated therein that the quasi-judicial Tribunal is not required to advice the parties either about its rights or what it should do or omit to do. The Hon'ble Court's view is distilled in paragraph 32 of the judgment, which we feel is essential to be read in its whole. We, therefore, extract it as under :-
"If such be the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of WPC 29022/06 & con. cases 67 the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The quasi- judicial tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non- existing contention by evidence. It is well-settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would be tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Private) Ltd. v. Industrial Tribunal [(1967) 2 LLJ 677, 680 (Punj HC)], commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary."
Their Lordships then proceeded to conclude that such an attitude, if adopted by the Tribunal, would be against the requirements and rules governing the procedure to be adopted by it and would be against the grain of the adversarial WPC 29022/06 & con. cases 68 system and against the principles governing the decision of a lis between the parties arrayed before it. The binding opinion of the Hon'ble Supreme Court is ineluctable from the above extract. It is certainly incumbent upon the parties to a lis to at least plead their basic claims to invite an adjudication.
70. The statement filed by the Union, in support of the claims of their members in this case, which we have extracted above to facilitate a full reading, would not in any manner even indicate that the employees were recruited and employed by the Society and that they were engaged by the said Society in the canteen run by the BPCL-KRL. What is pleaded in the claim is that they were employed by the BPCL-KRL through the agency of the Society which merely acted as a name lender. We do not understand what the union meant by this. It can only be presumed that what was intended was that the employees were in fact recruited and appointed by the BPCL-KRL but shown to be employees of the Society. When the claim itself was vague and unsure, the Tribunal, in our view, ought not to have entered into an all encompassing investigation to find whether the arrangement between the WPC 29022/06 & con. cases 69 Society and the BPCL-KRL was sham and then to proceed to say that the employees of the Society engaged by it in the canteen would thereafter obtain eligibility for being regularised in the service of the BPCL-KRL. The Tribunal could not have and ought not to have entered into an enquiry which was unnecessary and which was not enjoined on it under the terms of the reference. The only term in the reference was to find whether the demand of the Union that its employees be regularised by the BPCL-KRL be found to be justified or otherwise. There was no brief given to the Tribunal, even under the statement of claim, as to whether the arrangement between the Society and the BPCL-KRL was sham or whether such arrangement would justify the claims of the employees for regularisation, in spite of the fact that they were concededly not recruited or appointed by the BPCL-KRL directly.
71. At this point Sri.K.C.Santhosh Kumar, learned counsel appearing on behalf of the petitioner in W.P.(C) No. 16650/2017 interjects asserting that the award of the Tribunal is completely justified on account of certain documents that WPC 29022/06 & con. cases 70 has been produced on record and marked. He refers to Exhibits W4 and W7 and says there is a reference therein to his client being shown as being employed by the BPCL-KRL in their "canteen department". We understand that this submission is made with reference to Exhibits W4 and W7 because a roll number is shown therein as being assigned to his client under a department called "canteen department" of the BPCL-KRL. Sri.Santhosh Kumar thus maintains that his client should be construed to be directly employed by the BPCL-KRL in their "canteen department".
72. We are afraid that this submission cannot find favour with us for several reasons. For the first, there is not a whisper in the statement of claim made by the union that the BPCL-KRL has a department called "canteen department" and that the 63 employees are engaged by the said department directly in the services of the BPCL-KRL. For the second, the writ petitioner has himself produced Ext.P1 wherein it is ineluctably shown that he is in the services of the Society and that he has been granted promotions in its services from a canteen boy then as a cook and finally as a supervisor. This WPC 29022/06 & con. cases 71 order, as is discernible from it, is not signed by any official of the BPCL-KRL but by the President of the Society and it clearly mentions therein that he is being promoted to a post carrying a particular scale of pay. This can be indicative of no other fact than that the Society has distinct scales of pay for various posts under it and that employees are appointed against such posts, under the prescriptions of the provisions of the KCS Act and Rules. These submissions, therefore, would hold no vigour.
73. Sri.Santhosh Kumar then predicates that the appointment of the employees in the canteen is even now not been done by the Society but by the BPCL-KRL directly. In strength of this submission, he has produced on record Exhibit P7, which is a print out of an Internet page of a site by name 'www.freshersworld.com'. Exhibit P7 appears to show that the BPCL-KRL has invited applications for the post of 'canteen boys' in the canteen run by it. There is no doubt that Exhibit P7 says that the BPCL-KRL has made this notification directly, perhaps leading to a suspicion that such appointment is being done directly by the BPCL-KRL themselves. However, the WPC 29022/06 & con. cases 72 Society has now filed a memo along with a new document, which is the advertisement made by it in 'Mathrubhumi daily' dated the 1st of May, 2013. This advertisement which has been produced by the Society in original by producing the relevant page of the said newspaper shows that the Society has called for applications to the post of 'canteen boys' under it. We notice that the notification produced by the Society is exactly the same as has been referred in Exhibit P7 Internet page, except that instead of the name of the Society, the name of the BPCL-KRL has been shown therein as having invited applications for the said post. It is ineluctable that what has been produced on record by the Society is the original page of the newspaper showing the advertisement given by it, whereas, Exhibit P7 is only a copy of the Internet page maintained by a third party facilitator. The information contained in the Internet page is not in conformity with the advertisement produced on record by the Society. Since Exhibit P7 has not been obtained by the petitioner from the official site of the BPCL-KRL but from a third party Internet site, we do not think that its contents would obtain any WPC 29022/06 & con. cases 73 conclusiveness or establish that the BPCL-KRL is making recruitment to the post of canteen boys on their own. We do not think that Exhibit P7 would aid this contention of the petitioner since it is only a copy of an Internet page maintained by a third party facilitator and we do not think that its contents would obtain a presumption of credibility, particularly in view of the original of the advertisement placed on record by the Society.
74. When our view as above was heard by Sri.Santhosh Kumar, learned counsel, during the dictation of this judgment, he tells us that this court had by order dated 31.05.2017 granted an interim order favouring his client under the strength of which, he has been continuing in service even after attaining the age of 58. He says that his client has thus worked in the canteen for two months now and that his client may not be now removed from service on account of the findings in these writ petitions.
75. We notice that it is conceded by the petitioner as is luculent from Exhibit P5 produced by him, that he had made WPC 29022/06 & con. cases 74 a request to the Society to allow him to continue to work until the age of 60 years in their services, of course, on the strength of the award of the Tribunal. We see that request is underpinned on his assertion that he should be deemed to be an employee of the BPCL-KRL in terms of the award and, therefore, that he should be allowed to continue in service until the age of 60, which is the age of superannuation according to him, in the service of the BPCL-KRL. We are afraid that we cannot countenance any of these submissions or contentions that this point, having already found in the earlier paragraphs of this judgment, that the 63 canteen employees mentioned in the reference before the Tribunal can neither claim regularisation or absorption nor be deemed to be in the services of the BPCL-KRL. These submissions therefore deserve only to be repelled and we do so.
76. In the conspectus and over view of all that we have recorded, found and said above, we cannot find ourself to be in agreement with the view, conclusion and holding of the Tribunal in the award impugned in W.P.(C) No.29022/2006 and produced therein as Exhibit P5. We, therefore, find WPC 29022/06 & con. cases 75 ourselves left without any other option but to set aside Exhibit P5 award produced in W.P.(C)No.29022/2006 and to quash the same as being illegal and improper.
77. Since the award of the Tribunal thus stands set aside, the claims of the petitioners in W.P.(C)Nos.16650/2017, 14288/2017 and 18716/2017, which are hinged on the said award would also consequently become untenable and being without foundations to stand on. We, therefore, are compelled to dismiss these writ petitions also consequent to our finding that the award of the Tribunal, namely, Exhibit P5 in W.P.(C) No.29022/2006 cannot stand the test of law. We order so.
78. Since the petitioner in W.P.(C)No.16650/2017 has continued in service beyond the age of 58 and has drawn salary for such period on the strength of an interim order of this court, we are certainly of the view that he cannot be prejudiced with regard to the monetary benefits already availed of by him for such period of service in view of our observations and conclusions in this judgment. We, therefore, direct the Society not to recover the amounts paid to the petitioner in W.P.(C)No.16650/2017 as salary or other benefits WPC 29022/06 & con. cases 76 for the period during which he has continued in service on the strength of the interim order of this court dated 31.05.2017.
These writ petitions are thus disposed of.
P.N.Ravindran, Judge Devan Ramachandran, Judge tkv