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"1. Whether the employees of canteen engaged and employed by MECON Welfare Committee consisting of the representatives of MECON (Non-executive) Employees' Union, MECON Executive Association and nominees of MECON are entitled to the same service conditions as are applicable to the employees of the VIP Guest House and of the Tea Club who are employed and engaged by MECON?
2. If so, from what date?
3. In view of the nature of work performed by the Canteen employees engaged and employed by MECON Welfare Committee, are they justified in law in asking for parity with the employees of MECON working in the VIP Guest House and the Tea Club keeping in view that the total number of the canteen employees are only 25 and the said Canteen run by Mecon Welfare Committee is a non- statutory and non-recognised canteen?"

2. The Tribunal after recording necessary evidence and hearing both the parties held that neither the reference was bad in law nor on facts, relationship of employer and employees existed between the management of Mecon and the workmen of Mecon Canteen and that the workmen of Mecon Canteen are entitled to get pay scales and other benefits which were/are available to the workmen of Mecon VIP Guest House and Mecon Tea Club from the dates of appointments of the concerned workmen. This award was challenged by the MECON by filing writ petition in the High Court. and submitted that the Tribunal had misdirected itself in framing the question. It was said that the question referred as directed by the Supreme Court clearly implied that the workers of the canteen were employed by the Mecon Welfare Committee, distinct from MECON and the question was whether those persons were liable to be treated as employees of the MECON. Since the question was wrongly framed, therefore, the wrong answer has been given by the Tribunal. This was opposed by the Canteen Sabha and a preliminary objection was raised to the effect that the writ petition was not maintainable. Learned single judge dismissed the preliminary objection of the canteen Sabha and upheld the order of the Tribunal and declined to interfere under Article 226 of the Constitution of India. Aggrieved against this order the MECON approached the division bench by filing the appeal, and the division bench after properly construing the matter came to the conclusion that the canteen was run by the Canteen Welfare Committee for the welfare of the staff and workmen of Mecon. Therefore, there was no Master and servant relationship between the employees of the Canteen and Mecon, and as such they are not entitled to the same service benefits as are admissible to the employees of the MECON serving for the VIP Guest House or for the Tea Club. Consequently, the Division Bench set aside the order of the Tribunal as well as the order of the single Judge and dismissed the writ petition. Hence the present appeal by the Canteen Mazdoor Sabha.

3. We have heard learned counsel for the parties & perused the record.

4. The basic question before us is whether these canteen employees are part of Mecon or not. There is no two opinion in the matter that the canteen is not managed by the management of Mecon. The point which ought to have been addressed by the Tribunal as well as by the Single Judge of High Court was what is the co-relation between the management of the canteen with the management of Mecon. Therefore, in order to answer this question whether the employees of the canteen are equated with the employees of Mecon the Tribunal and the Single Judge of High Court should have addressed the question whether there is master and servant relationship between the employees of the canteen with the management of Mecon. If that is not established, then there is no question of seeking any parity with the pay scale of the employees of Mecon. Simply because the canteen workers are discharging same duties as are being discharged by the employees of the V.I.P.Guest House or the Tea Club, that will not serve the purpose. On the evidence it appears that there is no such master and servant relationship between the two. In the present case, from the facts it is more than evident that the employees of canteen are appointed by the Canteen Welfare Committee and not by Mecon. Therefore, the canteen was not being run either under a statutory obligation or an obligation arising out of any standing order or other binding circulars of Mecon. It was also pointed out that there is no evidence to show that providing of canteen service was a part of the service conditions of the employees of Mecon. There is no contract between the Mecon with the employees in the canteen to this effect. Therefore, the learned Division Bench correctly approached the matter and rightly addressed whether there exists any relationship of master and servant between Mecon and the Canteen workers. The admitted facts are that the Management of Mecon had not recognized the Union of employees of the canteen. The day to day sales are deposited in the account of the Canteen Welfare Committee. The workmen of the canteen are never transferred either to the VIP Guest House or to the Tea Club or vice versa. The workmen at the VIP Guest House and Tea Club are appointed by the Mecon. There was no bank account given to the workmen employed in the canteen by the Management of Mecon and their salaries were not transferred to their respective bank accounts by Mecon unlike in the case of the employees of the VIP Guest House and the Tea Club. Since there is no relationship of master and servant between the employees of the canteen and Mecon, therefore, there is no question of giving them the salary at par with that of the employees of Mecon. These controversies have been put to rest long back and this Court has made a distinction between the statutory canteens and non-statutory canteens which are required to be established either by the statute, they stand on one footing and the other canteen which is run by the Welfare Committee stands on a different footing. This distinction has been maintained right from the beginning i.e. in M.M.R.Khan & Ors. V. Union of India & Ors. [ 1990 (Supp.) SCC 191]. In that case their Lordships have made a distinction that the canteens run by different railway establishments are classibiable into three categories i.e. (i) statutory canteens, (ii) non-statutory recognised canteens and (iii) non-statutory non-recognised canteens. Their Lordships said that the employees of the non-statutory non-recognised canteens stand on a different footing and are not entitled to claim the status of railway employees. It was observed as under:

Therefore, their Lordships after reviewing all the judgments have considered all the facets of the principle of Article 39(d) of the Constitution of India.

6. Now, adverting to the facts of the present case, the question which was framed by this Court while remitting the matter for reference clearly stated, which has been reproduced above, whether the employees of the canteen engaged and employed by MECON Welfare Committee consisting of the representatives of MECON (Non-executive) Employees' Union, MECON Executive Association and nominees of MECON are entitled to the same service conditions as are applicable to the employees of the VIP Guest House and of the Tea Club who are employed and engaged by MECON? Therefore, in order to bring them at par with the employees of the V.I.P.Guest House and Tea Club of Mecon, one has to decide what is the relationship of the employees of the canteen with the management of Mecon. Learned counsel for the appellant submitted that the Division Bench has gone wrong and should not have gone into the question of relationship of employees of the canteen with that of the management of Mecon. In fact, without first crossing this hurdle it was not possible to come to any decision whether the employees who are recruited by the Mecon management at V.I.P.Guest House or Tea Club can be treated at par with the employees of the canteen of Mecon and they should be given the same pay scale as given to the employees of the V.I.P.Guest House or Tea Club. In fact this question was inherent in the questions framed by this Court and the Tribunal also framed question whether relationship of employer and employee existed between the management of Mecon and employees of the canteen managed by the welfare committee. Therefore, it is not correct on the part of learned counsel for the appellant to submit that this question should not have been gone into and if this question has been wrongly framed or wrongly referred before the Tribunal then the matter should have been directly approached by the Management of the Committee before this Court. The argument of learned counsel for the appellant is totally misconceived. In order to grant equal pay for equal work one has to first address the question whether there is any master and servant relationship between the canteen employees and Mecon. In fact, without going into this question, other questions could not have been answered. In this view of the matter, the Division Bench correctly approached the matter and found that since there is no master and servant relationship between the employees of the canteen and Mecon, the workers of the canteen are not entitled to claim the salary which is given to the employees serving in the V.I.P.Guest House or Tea Club.