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6. Rule 65 states for providing canteen, Rule 66 speaks of Dining Hall, Rule 67 provides Equipment, Rule 68 for fixing the prices to be charged, Rule 69 deals with Accounts and Rule 70 deals with Managing Committee to manage the affairs of the statutory canteen. The relevant Rules will be adverted to in the reasoning portion of my judgment while answering the relevant contentious points that will be framed shortly.

7. Strong reliance was placed upon the Rules and the Notification referred to supra by the learned senior counsel Mr. Jayant Bhushan inter alia contending that the canteen is being run by the Air India through HCI by Chefair where the concerned workmen have been working in different capacities for number of years such as cook, ground cleaning staff, servicing, washing staff etc. etc. The HCI employed them on contract basis as canteen workers though they have been discharging their duties which are in perennial nature. Then action of the Management of Air India in employing the concerned workmen on contract basis is an unfair labour practice as defined under Section 2(ra) of the I.D. Act enumerated in the Vth Schedule to the Act, which provision was inserted by way of an amendment by Act No. 46 of 1982 w.e.f. 21.8.1984 at serial No. 10 to the Vth Schedule which states that “to employ workmen as casual or temporary workers and to continue them as such for years with the object to deprive them of the status and privileges of permanent workmen is an unfair labour practice on the part of the employer”. It is further stated that Management of Air India has employed more than 2000 employees in its factory and therefore notification issued by the Lt. Governor of Delhi on 21st January, 1991 applying Rules 65 to 70 of Rules 1950 to the said establishment framed under Section 46 of the Factories Act will be applicable to the canteen in question run by the HCI on behalf of Air India. It is the case pleaded and proved before the CGIT by the concerned workmen and it has recorded the finding in this regard in their favour by placing reliance upon three judge bench decision of this Court in the cases of M.M.R. Khan (supra), Parimal Chandra Raha & Ors. v. Life Insurance Corporation of India and Ors.[2], and another decision of this Court in Basti Sugar Mills Ltd. v. Ram Ujagar & Ors.[3] in support of the legal contention urged on behalf of the workmen that employees of statutory canteens i.e. canteens which are required to be compulsorily provided to its workmen in the factory as per Section 46 of the Factories Act are employees of the establishment not only for the purpose of Factories Act but also for all other purposes. In the case of Parimal Chandra Raha referred to supra, this Court has held that for canteen workers of contractor who runs the canteen, it must pass the relevant test to determine on the facts as to whether providing canteen to its workmen by a factory was obligatory on its part. In Basti Sugar Mills Ltd.'s case, this Court has held that the work of removal of press mud was given to the contractor and the workmen in that case were employed by the contractor to do that work, the contractor terminated their services on completion of the work. The stand taken in the said case by the establishment was that they had nothing to do with the workmen. The workmen in the case approached this Court for relief against the termination of their services. This Court held that the workmen were employed in the industry to do manual work for reward and therefore it is held that the Company was their employer, as the workmen were employed by the contractor with whom the Company had contracted in the course of conducting its business for execution of the said work of removal of the press mud which is ordinarily part of the industry. Further reliance was placed by the learned counsel upon the decision of this Court in Union of India & Ors. v. M. Aslam & Ors.[4] wherein this Court has held that for the unit run canteens of Army, Navy and Air Forces, the employees of such canteens are entitled to service benefits as government servants. Finding of fact was recorded by the CGIT in favour of the concerned workmen while answering the points of dispute referred to it by the Central Government with reference to the factual legal aspects and evidence on record from the aforesaid cases. This finding is found fault with by the Single Judge and Division Bench of the Delhi High Court and they had set aside the finding recorded by CGIT. Strong reliance was placed by the Delhi High Court upon the plea taken by Air India and HCI with regard to the fact that though HCI is subsidiary Company of the Air India, it is governed by its own Memorandum and Articles of Association as existed in the Companies Act and is governed by the provisions of the said Act. HCI is an independent legal entity from that of the Air India. The learned single Judge while accepting the factual and legal contentions urged on behalf of Air India, has referred to paragraph 17 of his judgment and stated with reference to the Memorandum and Articles of Association, and observed that the general management of business of HCI vests with its Board of Directors, no doubt, the same is subject to the directions, if any, that will be issued from time to time from Air India with regard to the finance and conduct of its business affairs. However, the composition of the Board of Directors of HCI is constituted by Air India in consultation with the Government of India. In view of the said reason, it cannot be said that the concerned contract employees employed by HCI to do work in the canteen are employees of Air India in the face of the first principle of Corporate law with reference to Salomon v. Salomon & Co. Ltd.[5], wherein it was held that Company is a person all together different from its shareholders though Air India is the sole holder of the shares of the HCI. The HCI is a legal entity independent of its shareholders with reference to Section 46 in Chapter V of the Factories Act under the heading “welfare”. The mandatory provision is provided to maintain a canteen in the establishment, which is a measure for the welfare of the workers, the statutory obligation on the part of the industrial establishment to provide and maintain a canteen in the factory. If it is found that the operation of such canteen has been entrusted to such an expert, it cannot be said that the employees deployed by such expert in such canteen becomes employees of the factory/establishment. Further, it is held by him that HCI was not incorporated merely to run the canteen of Air India so as to keep the employees of the canteen maintained by it at arm's length from Air India. The HCI is a business entity on its own rights and no malafide have been established by the concerned workmen in the Management of Air India in entrusting the operation and management of its canteen to the HCI and no prejudice is shown to have been caused to the concerned workmen being the employees of the HCI instead of Air India, except that they may be entitled to a free flight once in a while from it, which they may not be entitled to get as workmen of the HCI. Therefore, he has held that it is hardly determinative of the matter in controversy and thereafter he has referred to the judgments of this Court in Indian Petrochemicals Corporation Ltd. & Anr. v. Shramik Sena & Ors.[6], Steel Authority of India Ltd. & Ors. v. National Union Waterfront Workers & Ors.[7], International Airport Authority of India v. International Air Cargo Workers' Union & Anr.[8], in support of his conclusion laid down by applying the test laid down in those cases to the fact situation and held that there is no relationship of employer and employee and hence no existing industrial dispute would arise within the meaning of Section 2(k) of the I.D. Act between the concerned workmen and the Management of Air India. Therefore, he has quashed the award of the CGIT which was affirmed by the Division Bench of the Delhi High Court in the aforesaid L.P.As by accepting the reasons recorded by the learned single Judge and also after extracting certain relevant paragraphs from the decisions of this Court in the cases of M.M.R. Khan, Parimal Chandra Raha, Indian Petrochemicals Corporation Ltd., (all referred to supra) Hari Shanker Sharma and Ors. v. Artificial Limbs Manufacturing Corporation and Ors[9]. The Division Bench of Delhi High court has concurred with the finding and reasons recorded by the learned single Judge in the impugned judgment and dismissed the letter patent appeals of the concerned workmen. The correctness of the said judgment and order are impugned in these civil appeals by the concerned workmen reiterating their factual and legal contentions as has been adverted to before the CGIT and the High Court in the writ petition and the appeals. Therefore, the same need not be adverted to once again in this judgment with a view to avoid repetition.

10. Another ground urged by the learned senior counsel is that the High Court failed to appreciate the fact that the canteen has been in existence since 1945. It is a deemed statutory canteen under Section 46 of the Factories Act vide notification of 1991 referred to supra. Therefore, the CGIT has come to the right conclusion and held that the canteen is incidental to and running the canteen and the work of the workmen is subject to the supervision and control of Air India. It is further contended that the Division Bench of the Delhi High Court has erroneously applied the judgments in Indian Petrochemicals Corporation Ltd., Parimal Chandra Raha and referred to para 22 of M.M.R. Khan’s case, Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu & Ors.[13], Haldia Refinery Canteen Employees Union & Ors. v. Indian Oil Corporation & Ors.[14], and Hari Shanker Sharma (supra) to set aside the findings of the CGIT and concurred with the finding of learned single Judge. Therefore, the learned senior counsel has urged this Court for quashing of the impugned judgments of both the learned single judge and the Division Bench since the same are not only based on erroneous reasoning but also suffer from error in law in view of the clear pronouncement of law laid down by this Court in the three Judge Bench decision of this Court in the case of M.M.R. Khan (supra) on the question of providing and maintaining statutory canteen to its workmen/employees in support of his contentions that the employment of contract employees by Air India through HCI to run the statutory canteen in its premises is a sham and camouflage to deprive the legitimate statutory and fundamental rights of the concerned workmen. Therefore, he submits that the CGIT was justified in lifting the veil or piercing the veil from the nature of employment to provide and maintain the statutory canteen by Air India through HCI and the finding by CGIT is supported by plethora of judgments of this Court referred to supra. It is further submitted by him that there is direct control and supervision on the functioning of the canteen and its employees by Air India being a statutory canteen which is required to be maintained by it in conformity with Rules 65 to 70 of the Delhi Factories Rules 1950 and under Section 46 of the Factories Act and notification has been rightly issued enlisting the Management of Air India in the Schedule to the said notification for providing and maintaining the statutory canteen which notification has not been questioned by Air India. Therefore, the decisions of the Supreme Court referred to supra regarding piercing the veil for the purpose of finding out the real facts and to give effect to the object and intendment of the statute while recruiting the workmen on contract basis which is in violation of the statutory provisions of the Industrial Disputes Act has been rightly arrived at by the CGIT on proper appreciation of pleadings and evidence on record to answer the points in the affirmative. Therefore, the learned senior counsel has requested this Court to interfere with the impugned judgments and for restoration of the award passed by the CGIT.

20. Learned senior counsel on behalf of the workmen has also placed reliance upon another judgment of this Court in Parimal Chandra Raha (supra) upon which the CGIT placed reliance in arriving at the right conclusion to hold that the concerned workmen are entitled for absorption. In the above said case, this Court held that the appellant workmen working in the canteens at different offices of LIC across the country were like regular employees of the LIC as the canteens are run and managed by different entities like Canteen Committees, Cooperative Society of the employees and even contractors and directions about how to run the canteen were issued by the LIC. In the said case, the infrastructure, the premises, the furniture, electricity, water etc. were supplied by the LIC. The working hours were also fixed by the LIC. Though LIC was obviously not a factory, and the canteen established and run by it was not a statutory canteen, still this Court held that whether the canteen was to be run under an obligatory provision of the Factories Act or under a non-statutory obligation to provide a canteen, the position is the same and that the canteen workers become a part of the establishment. Therefore, in the said case it is held that the workmen were entitled to the same wages as Class-IV employees of the LIC.

22. From the review of case law on this aspect, two kinds of situations arise, one in which the contractor is changed but not the workers employed. In the Parimal Chandra Raha and the Indian Petrochemicals cases referred to supra, such were the situations, upon which strong reliance is placed by the learned single Judge and the Division Bench of the High Court to set aside the finding of fact recorded by the CGIT in its award on the points of disputes referred to it. This Court has taken a note of this relevant fact and considered the same in the instant case to decide as to whether the canteen workers should be regularized by the principal employer? The other situation is where the contractor is changed and along with him the workers also get the boot. The effect of this situation appears that the workers have been temporary. In reality they are kept temporary in order to perpetuate ‘unfair labour practice by the employer, which is not permissible in view of Section 25T of the I.D. Act read with entry at Serial No. 10 in the Vth Schedule of the I.D. Act regarding unfair labour practices on the part of the employer. In the case in hand, I hold that Air India is the principal employer and Chefair - an unit under HCI is the contractor, on the basis of the pleadings of the parties and law laid down by this Court referred to supra in the earlier paragraph of this judgment. The CGIT has rightly arrived at the finding that Chefair is the unit of HCI which renews the contract of canteen workers every forty days. Unfortunately, the said workers, have been continued as contract workers in the canteen though they have completed 240 days of continuous service in a year as defined under Section 25B of the I.D. Act which action of the Air India is unfair labour practice and is prohibited under Section 25T of the I.D. Act. In spite of statutory prohibition of employing the concerned workmen in the canteen on contract basis in permanent nature of work, the Chefair - a unit of HCI and Air India have indulged in unfair labour practices as defined under Section 2(ra) read with Section 25T and the Vth Schedule of the I.D. Act, with a deliberate intention to deprive the statutory rights of the concerned workmen which is a glaring patent illegality committed by them for which they are liable to be punished under Section 25U of the I.D. Act read with the Rules.