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16. Mr. Sanjay Mohan, learned counsel appearing for the first respondent, on the other hand, submitted that Section 46 of the Factories Act requires that a canteen should be provided and maintained by the occupier for the use of the workers. He referred to Section 46 of the Factories Act and the Rules framed there under. He referred to the decision of the Supreme Court in INDIAN PETROCHEMICALS CORPN. LTD. v. SHRAMIK SENA and submitted that the Supreme Court has held that the employees of statutory canteen are workmen of the establishment for the purpose of Factories Act only and not for all purposes. Learned counsel submitted that in Indian Petrochemicals Corpn. Ltd. Case, the Supreme Court referred to its decision in Parimal Chandra Raha case as well as M.M.R. Khan v. Union of India (1990 Supp SCC 191 and Reserve Bank of India v. Workmen and held that the workman of a statutory canteen would be a workman of the establishment for the purpose of Factories Act and not for all purposes. He submitted that the Full Bench of this Court in Tamil Manila Thozhilalar Sangam case (1998(3) LLN 421) was rendered on 5.5.1998 before the decision of the Supreme Court in Indian Petrochemicals Corpn. Ltd. Case which was rendered on 4.8.1999 and hence, the Full Bench decision of this Court may not be relevant for the purpose of this case. He submitted that the judgment in Indian Petrochemicals Corpn. Ltd. Case, rendered by a three Judge Bench of the Supreme Court, is a binding decision on this Court. He also referred to the decision of the Supreme Court in WORKMEN OF THE CANTEEN OF COATES OF INDIA LTD. v. COATES OF INDIA LTD. (2004) 3 SCC 547) in which the judgment was delivered on 28.8.1996 wherein the Supreme Court held that the provision in Factories Act requiring a canteen to be provided in the industrial establishment premises is not decisive to hold that the workmen employed in such a canteen are workmen of the establishment. He also referred to the decisions of the Supreme Court in UNION OF INDIA v. M. ASLAM (2001) 1 SCC 720) and G.B. PANT UNIVERSITY OF AGRICULTURE & TECHNOLOGY v. STATE OF U.P. . Learned counsel strongly relied upon the decision of the Supreme Court in HARI SHANKAR SHARMA AND ORS. v. ARTIFICIAL LIMBS CORPORATION AND ORS. (2002 I LLJ 237) and submitted that the Supreme Court has held that the employees in a canteen set up in discharge of statutory mandate, namely, Section 46 of Factories Act, 1948 do not necessarily become employees of establishment and it would depend on how the obligation to set up the canteen was discharged by establishment, whether by direct recruitment or by employment of contractor. Learned counsel pointed out that Ms. Justice Ruma Pal was a party to the Constitution Bench which rendered the decision in Steel Authority of India Ltd. v. National Union Waterfront Workers (2001) 7 SCC 1 - hereinafter referred to as ' SAIL case') and if the Three Judge Bench decision of the Supreme Court in Indian Petrochemicals Corpn. Ltd. Case had been overruled by the judgment in SAIL case, the Supreme Court would not have followed the said decision in Artificial Limbs Manufacturing Corporation case (2002-1-LLJ 237). Learned counsel referred to the decision of the Supreme Court in WORKMEN OF NILGIRIS CO-OP.MKTG. SOC. LTD. v. STATE OF T.N. (2004 II LLJ 253), particularly paragraph-74 of the judgment wherein the Supreme Court held that though the Supreme Court had reservation about the correctness or otherwise of the decision in Mishra Dhatu Nigam Ltd. v. M.Venkataiah (2003 III LLJ 847), but it did not go into the said question inasmuch even therein it noticed that the decision in SAIL case stood on a different footing. Learned counsel therefore submitted that the appellants are the employees of the establishment run by the respondents 1 and 2 for the purpose of Factories Act only and not for any other purpose.

17. We have carefully considered the submissions of learned senior counsel for the appellants and learned counsel for the first respondent. In NATIONAL THERMAL POWE CORPN. LTD. v. KARRI POTHURAJU the Supreme Court after referring to the decision in Indian Overseas Bank case , SAIL case (2001) 7 SCC 1, VST Industries Ltd. v. Workers' Union (2001)1 SCC 298), Indian Petrochemicals Corpn. Ltd. Case and Saraspur Mills Co. Ltd. v. Ramanlal Chimanlal held as under:-

"We have carefully considered the submissions of the learned counsel appearing on either side. In Saraspur Mills this Court held that where there is a statutory liability on the company concerned to run a canteen in the factory, then even though the canteen was run by a cooperative society, the employees working in the canteen would be covered by the definition of the word 'employed' envisaged in Section 3(13) of the Bombay Industrial Relations Act. In VST Industries (2001) 1 SCC 298) dealing with the claim of workers of a canteen run through a private contractor in pursuance of the obligation of the industrial establishment under Section 46 of the Factories Act, 1948, this Court upheld the claim of workers for being treated as the workers of the company itself. In Steel Authority (2001) 7 SCC 1) a Constitution Bench of this Court considered the claims of contract labourers engaged by a contractor for absorption in the establishment of the principal employer on issuance of the abolition notification under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the rules made thereunder. This Court, while adverting to the position of law in force, has observed as follows: (SCC pp.55-56, paras 106-07) '106. We have gone through the decisions of this Court in VST Industries case (2001) 1 SCC 298), G.B. Pant University case and M. Aslam case (2001) 1 SCC 720). All of them relate to statutory liability to maintain the canteen by the principal employer in the factory/establishment. That is why in those cases, as in Saraspur Mills case the contract labour working in the canteen were treated as workers of the principal employer. These cases stand on a different footing and it is not possible to deduce from them the broad principle of law that on the contract labour system being abolished under Sub-section (1) of Section 10 of the CLRA Act the contract labour working in the establishment of the principal employer have to be absorbed as regular employees of the establishment.107. An analysis of the cases, discussed above, shows that they fall in three classes: (i) where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the industrial adjudicator/court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10(1) of the CLRA Act, no automatic absorption of the contract labour working in the establishment was ordered; (ii) where the contract was found to be a sham and nominal, rather a camouflage, in which case the contract labour working in the establishment of the principal employer were held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor the courts have held that the contract labour would indeed be the employees of the principal employer. Consequently, we consider it to be too late in the day for the appellant, which had an obligation under the Factories Act, 1948 to run the canteen to contend to the contrary. So far as the case on hand is concerned, the Division Bench has chosen to leave liberty to the appellant to consider the claims of the workers as to whether they satisfy the requirements and whether they are otherwise unfit for confirmation. In the light of all these, we are unable to countenance the challenge to the decision of the High Court, as either legitimate or valid one."

19. In SAIL case, the Constitution Bench of the Supreme Court considered three points that arose consideration which are as under (para-6):

"(i) what is the true and correct import of the expression 'appropriate Government' as defined in Clause (a) of Sub-section (1) of Section 2 of the CLRA Act;

(ii) whether the notification dated 9.12.1976 issued by the Central Government under Section 10(1) of the CLRA Act is valid and applies to all Central Government companies; and

(iii) whether automatic absorption of contract labour, working in the establishment of the principal employer as regular employees, follows on issuance of a valid notification under Section 10(1) of the CLRA Act, prohibiting the contract labour in the establishment concerned."

23. In our view, the decision in Indian Petrochemicals Corpn. Ltd. Case would apply to the facts of the case. Though in that case the contract was found to be sham and nominal, the ratio of the judgment of the Supreme Court is that the employees of the canteen under Section 46 of the Factories Act would be employees only for the purpose of Factories Act and not for any other purpose. The same view has been reiterated in some of the decisions of the Supreme Court which we have referred to earlier where the Supreme Court held that employees of a statutory canteen would be employees only for the purpose of the Factories Act and not for all purposes. We find that the submission of Mr. Sanjay Mohan, learned counsel for the first respondent has force. His submission was that the decision in SAIL case has to be read in the context of the points that arose for consideration in that case and paragraphs-71 and 107 of the judgment in SAIL case should be read together and unless the contract in respect of a statutory canteen is a sham and nominal contract, the employees of such canteen would continue to be the workmen of the contractor. Learned counsel referred to paragraph-107 of the judgment and submitted that the Supreme Court referred to the judgments in VST Industries case (2001)1 SCC 298), G.B. Pant University case , M. Aslam case (2001) 1 SCC 720) and Saraspur Mills case and in all those cases the principal establishment was actually in full control of the canteen workmen. In so far as VST Industries case is concerned, the decision arose from the judgment of Andhra Pradesh High Court and in that case it was held that the contract was a sham document. Learned counsel submitted that paragraph-107 of the judgment in SAIL case should be confined only to a case where there is a finding of sham or camouflage or where as in the Saraspur Mills case the definition of 'worker' in the State Act was wide enough to treat a contract labour as an employee of the principal employer. His submission is that the Supreme Court in SAIL case has not overruled the decision in Indian Petrochemicals Corpn. Ltd. Case and there was no implied overruling also as one of the Judges who decided SAIL case was also the member of the Bench which decided the case subsequently in Artificial Limbs Manufacturing Corporation case (2002-1-LLJ 237) which was decided two months after the judgment in SAIL case was delivered. In so far as Mishra Dhatu Nigam case is concerned, he submitted that the decision in Mishra Dhatu Nigam case would be applicable to a case where the contract is sham.