( 1 ) THIRTY five workmen of a statutory canteen established by the Mills (managed by DCM) under Section 46 of the Factories Act, 1948 to cater to the 5000 workers in the Mill, have been struggling for the last 25 years to get over a preliminary objection raised by the appellant-management in regard to the maintainability of the reference under Section 10 of the Industrial Disputes Act, 1947.

( 2 ) THIS appeal by the Management deals with the correctness of the award dated 16. 1. 71 passed against the workmen. The award was set aside by the learned Single Judge on 30. 11. 83 holding that the reference is maintainable before the Tribunal. While the Tribunal held that there was no relationship of master and servant between the mill and the canteen workers, the learned Single Judge took the other view, holding that such relationship existed and set aside the award and remitted the matter to the Tribunal by judgment dated 30. 11. 83 and the Tribunal has now given its fresh decision on merits on 31. 8. 87 on quantum of wages in favour of the workmen and that has been challenged, this time, by the Management in CW 720/88 which is still pending.

( 3 ) THE following are the facts: The writ petition CW 869/71 was filed by the workmen of Swantantra Bharat Mills Canteen aggrieved by the original award dated 16. 1. 71 in I. D. 45/70 (published in Gazzette on 18. 3. 71 ). The terms of the reference, as per the order of the Lt. Governor, Delhi dated 27/29 June,1970 were as follows:-

(1) Whether the canteen employees are entitled to the following pay-scales and if so, what directions are necessary in the matter:- (a) (unskilled) Masalchis, Sweepers etc. Rs. 40-3-55-4-75-100 (b) (semi-skilled): Bearers, Waitors etc. Rs. 60-3-75-4-95-5-120. (c) (skilled): Cooks, Halwais, Counterman, Salesman etc. Rs. 80-4-100-5-125-6-155. (2) Whether the canteen employees are entitled to DA like other workmen of the mills, and if so, what directions are necessary in the matter. " On a consideration of the pleadings of the parties, the Tribunal, in its order dated 16. 1. 71 framed the following point for consideration: Whether the reference is not competent for the reasons given in the application?"

( 4 ) THE Tribunal held that the reference was incompetent inasmuch as the workmen were employed by the Trust, namely, "employees Benefit Fund Trust, The DCM Co. Ltd, Delhi" and that the canteen workers were not the employees of the appellant Mills.

( 5 ) THE learned Single Judge, by judgment dated 30. 11. 83 allowed the writ petition 869/71 filed by the workmen and held that the workmen were, in law, the employees of the Mill and not of the Trust. He quashed the decision of the Tribunal on the preliminary point and sent back the matter to the Tribunal for decision on the merits. We are here concerned, in this appeal by the Management as to whether the decision of the learned Single Judge on the preliminary issue is correct or not.

( 6 ) THE contention of the Management has been and is that the workmen were employed by the employees Benefit Fund Trust, The DCM Co. Ltd. , Delhi" and that they were not the employees of the Swantantra Bharat Mills. In the main Mill, there are 5000 employees, while the canteen workers, whose rights are before us, are 35 in number (vide para 8 of CWP 869/71 ). M/s Delhi Cloth and General Mills (hereinafter called DCM ) owns the Swantantra Bharat Mills which is a Textile Mill with 5000 employees. The Mill is covered by Section 46 of the Factories Act, 1948 and inasmuch as the workmen in the Mill were more than 250, the mandate under Section 46 that there should be a canteen became applicable. The canteen is being run in the Mill premises and became a statutory canteen by virtue of Section 46 of the Factories Act.

( 7 ) THE DCM created a Trust on 16. 3. 44 called the the Employees Benefit Fund Trust and it was intended to organise and administer the work of welfare activities of the Mill employees like, establishin