JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard the learned Advocates for the petitioners and the respondent No. 1. Perused the records.

2. The petitioners are challenging the judgment and order dated 27-1-2000, passed by the Industrial Court dismissing the Complaint (ULP) No. 889 of 1994, filed by the petitioners, holding that the workers employed by the respondent No. 2 in the canteen in question are not the employees of the respondent No. 1 and, therefore, the complaint under section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter called as "the said Act", was not maintainable.

3. While challenging the impugned judgment and order, the learned Advocate for the petitioners has submitted that the Court below has totally overlooked the fact that the respondent No. 1 was statutorily bound to have a canteen in the premises of the undertaking and accordingly had such canteen wherein the petitioners were continuously employed irrespective of change of the contractors from time to time, and therefore the respondent No. 1 is their employer within the meaning of the said expression under section 3(14) of the Bombay Industrial Relations Act, 1946, hereinafter called as "the BIR Act", and thereby has acted illegally in dismissing the complaint. He has further submitted that in any case a canteen being a facility provided for the workmen employed in the undertaking of the respondent No. 1, it has to be considered as part of the undertaking and, therefore, the petitioners are the employees of the respondent No. 1 considering the definition of the said expression under section 3(14) of the BIR Act. Inspite of the fact that all the relevant statements disclosing jurisdictional facts in the complaint itself, the Industrial Court has illegally dismissed the complaint. Drawing attention to the decision of the Apex Court in the matter of (The Saraspur Mills Co. Ltd. v. Ramanlal Chimanlal and others)1, reported in 1973 Lab.I.C. 1040, and in the case of (M/s. Basti Sugar Mills Ltd. v. Ram Ujagar and others)2, reported in A.I.R. 1964 S.C. 355, as well as the decision of the learned Single Judge, as he then was, of this Court, in the matter of (Dattatraya Kashinath others v. Chhatrapati Sahakari Sakhar Karkhana Ltd., Pune and others)3, reported in 1996(2) L.L.J. 169 and in the matter of (Sakhar Kamgar Union v. Shri Chhatrapati Rajaram Sakhari Sakhar Karkhana Ltd., and another)4, reported in 1996(2) Bom.C.R. 49, it is sought to be argued that the decision of the Apex Court as well as of this Court on the issue of absence of jurisdiction to the Industrial Court to entertain the complaint under the said Act were not delivered in the matters arising under the BIR Act and therefore those decisions are clearly distinguishable and cannot be applied to the facts of the case in hand. On the other hand, the learned Advocate for the respondent No. 1 has submitted that the complaint filed by the petitioner did not disclose the statutory liability of the respondent No. 1 to have a canteen as being a part of its undertaking, except mere submission in that regard in the complaint. He has further submitted that section 16 of the Factories Act, 1948 clearly requires the Government to issue a notification specifying the undertaking to require to have a canteen for the use of the workers and the Rules 79 to 85 of the Maharashtra Factories Rules, 1963 are applicable in that regard and that Rule 79(1) clarifies the necessity of a notification which is required to be issued by the Government in order to attract the provisions of section 46 in case of any particular undertaking. In the case in hand, according to the learned Advocate for the respondent No. 1, it is nobody's case that there has been any such notification issued and that therefore there is no statutory liability upon the respondent No. 1 to maintain a canteen for its workers. As regards the contention that irrespective of the statutory liabilit

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