Workmen Of Ashok Leyland Ltd. And … vs Ashok Leyland Ltd. And Ors. on 6 July, 1990

Madras High Court

Workmen Of Ashok Leyland Ltd. And … vs Ashok Leyland Ltd. And Ors. on 6 July, 1990

Equivalent citations: (1991) IILLJ 12 Mad

Author: Somasundaram

Bench: S N Sundaram, Somasundaram

JUDGMENT Somasundaram, J.

1. The petitioners in Writ Petition No. 8646 of 1984 are the appellants in this writ appeal. For the sake of convenience the parties are referred to by the nomenclature given in the writ petition.

2. The petitioners filed Writ Petition No. 8646 of 1984 for the issue of a writ of certiorari to quash the award, dated 21st September, 1983, passed by the third respondent in I.D. No. 306 of 1977.

3. The case of the petitioners in Writ Petition No. 8646 of 1984 is as follows :

The first respondent company is engaged in the manufacture of chassis and industrial engines. Within two years of the commencement of production, in accordance with statutory obligations under the Factories Act, the first respondent-company started the second respondent – canteen for the sale of foodstuffs to the workers of the company. The canteen was started and was being run on a co-operative basis and for this purpose the second respondent – society was formed and registered under the provisions of the Tamil Nadu Co-operative Societies Act. The petitioners were all employees in the second respondent – canteen. The second respondent – canteen incurred huge losses and eventually it ceased to function and the services of the petitioners were terminated. The petitioner – union issued a demand to respondents 1 and 2 calling upon them to reopen the canteen and re-employ all the workmen with continuity of service with full back-wages. The demand was no complied with by respondents 1 and 2 and, therefore, the petitioner raised a dispute, which has been referred for adjudication to the third respondent in I.D. No. 306 of 1977. On 21st September 1983, the third respondent passed an award in I.D. No. 306 of 1977 holding that the non-employment of the petitioners was justified. As against the order of the third respondent in I.D. No. 306 of 1977 the petitioners filed Writ Petition No. 8646 of 1984 to quash the award passed in I.D. No. 306 of 1977. The learned Single Judge dismissed the writ petitioner at the admission stage and aggrieved by the order of the learned Single Judge the petitioners have filed the present writ appeal.

4. Shri T. Fenn Walter, learned Counsel for the petitioners, would contend that a statutory duty is cast on the first respondent to run the canteen by S. 46 of the Factories Act, 1948. Though the canteen was run by the second respondent – canteen by virtue of the definition of “worker” given in S. 2(1) of the Factories Act, 1948, the workers of the second respondent – canteen must be considered as workers of the first respondent and, therefore, the first respondent is bound to reinstate the petitioners in their service. In support of his contention learned Counsel relied on the decision in Saraspur Mills Company Ltd. v. Ramanlal Chimanlal and Ors. (1973-II-LLJ-130). We are unable to accept the contention of the learned Counsel for the petitioners. On a consideration of the entire evidence on record, the Labour Court found that the rules and by-laws of the second respondent indicate that the second respondent – co-operative canteen has to function as an independent body without reference to the first respondent. The evidence in this case discloses that all the petitioners were employed only by the second respondent and they were paid by the second respondent – canteen and they were employees of the second respondent alone and not of the first respondent at all stages. Exhibits W1 to W29, particularly Exhibits W. 13 to W. 18 and W. 20 to W. 29 indicate that the second respondent has been running its administration and affairs independently. It is also admitted that there has been a settlement between the petitioners on the one hand and the second respondent – canteen on the other in the year 1964, which shows that the second respondent has been running its administration and affairs independently. WW5 his evidence had admitted that the administration of the canteen has been independent. As the management of the canteen is entrusted with the second respondent which was a distinct entity by itself, the petitioners cannot require the first respondent to reinstate them in service. In view of the specific finding of the Labour Court on a question of fact that the second respondent was a distinct entity, it cannot be said that the first respondent was the employer of the workers in the second respondent – canteen and is bound to provide employment to them on the closure of the canteen run by the second respondent.

5. It is one thing to say that the first respondent is bound to provide and maintain a canteen under S. 46 of the Factories /Act, and it is another thing to say that when the canteen run by a Co-operative Society, as a separate entity, be-came defunct, the first respondent is bound to provide employment to its workmen. Sec. 46 of the Factories Act, of course enjoins upon the occupier to provide and maintain canteen for the use of the workers. With regard to and for the discharge of that obligation cast upon by the statute, the occupier need not necessarily become the employer. In fact, the set of rules adumbrated in the Tamil Nadu Factories Rules, 1950 contemplate and provide for running of such canteens; and in particular, Rule 70(6) prescribes that the workers of the factory can, by themselves, run the canteen on a co-operative basis and in such a case the running of the canteen will be governed by the law governing Co-operative Societies. This is exactly what seemed to have happened in the present case.

6. The reliance placed by the learned Counsel for the petitioner on the decision in Saraspur Mills Company, Ltd. v. Ramanlal Chimanlal and Ors. (supra), in our view, is no an appropriate one. There, the Supreme Court was more concerned with the definition of an “employee”, as found in the Bombay Industrial Disputes Act, 1938. The factual findings rendered by the Labour Court in the present case is that the second respondent was a distinct and a separate entity and the first respondent in such a contingency could not have the role of an employer with reference to the workmen employed in the canteen run by the second respondent. We have to decide the case on the facts exposed. By mere reference to S. 46 of the Factories Act, it is not possible to spell out a conclusive theory, without reference to the fact, that there ought to have existed the relationship of employer and employee in all cases.

7. In these circumstances, we are not inclined to interfere with the judgment of the learned Single Judge as there is no infirmity in the judgment of the learned Single Judge. There are no merits in the writ appeal and the same is liable to be dismissed. Accordingly, the writ appeal is dismissed. But, in the circumstances of the case, there is no order as to costs.