Because of the fact that contractor brings the workers to such canteen does not make workers employees of the contractor.

Shivaraj Patil, J.

1. These cases are placed before us for disposal on reference made by a Division Bench of this Court on 10.1.1996.

2. The question that came up for consideration before the Division Bench was, whether the canteen run in the second respondent factory, which is statutorily obligatory, can be treated as part and parcel of the establishment of the management, or it can be treated as an independent entity, not coming under the management, and thereby the workmen working therein not becoming the members of the establishment of the management.

3. A Division Bench of this Court, in Workmen Employed in the canteen run by S. R. F. Ltd., Madras v. Government of Tamil Nadu and others, 1995 II CLR 136, took the view that the canteen in run by the contractor or a co-operative society; the employer in relation to the workers engaged in the canteen will be the contractor or the society, as the case may be, and not the proprietor of the factory, and in such cases all the claims of the canteen employees have to be met by the contractor or the co-operative society as the case may be; and the mere fact that the S.R.F. company has the responsibility to provide and maintain a canteen for their workmen under under Sec. 46 of the Factories Act, it will not make them automatically the employer of the canteen employees in all cases and for all purposes.

4. The Apex Court in Parimal Chandra Raha and others v. Life Insurance Corporation of India and others, 1995 II CLR 194, in para 27, has held that :

"What emerges from the statute law and the judicial decisions is as follows :

(i) Whether as under the provisions of the Factories Act, it is statutorily obligatory on the employer to provide and maintain canteen for the use of his employees, the canteen becomes a part of the establishment, and therefore, the workers employed in such canteen are the employees of the management.(ii) Where, although it is not statutorily obligatory to provide a canteen, it is otherwise an obligation on the employer to provide a canteen, the canteen becomes a part of the establishment and the workers working in the canteen, the employees of the management. The obligation to provide a canteen has to be distinguished from the obligation to provide facilities to run canteen, the canteen run pursuant to the later obligation, does not become a part of the establishment.

(iii) The obligation to provide canteen may be explicit or implicit. Where the obligation is not explicitly accepted by or cast upon the employer either by an agreement or an award, etc. It may be inferred from the circumstances and the provision of the canteen may be held to have become a part of the service conditions of the employees. Whether the provision for canteen services has become a part of the service conditions or not, is question of fact to be determined on the facts and circumstances in each case. Where to provide canteen service has become a part of the service conditions of the employees, the canteen becomes a part of the establishment and the workers in such canteen become the employees of the management.

(iv) Whether a particular facility or service has become implicitly a part of the service conditions of the employees or not, will depend, among others, on the nature of the service/facility, the contribution the service in question makes to the efficiency of the employees and the establishment, whether the service is available as a matter of right to all the employees in their capacity as employees and nothing more, the number of employees employed in the establishment and the number of employees who avail of the service, the length of time for which the service has been continuously available, the hours during which it is available, the nature and character of management, the interest taken by the employer in providing, maintaining, supervising, the controlling the service, the contribution made by the management in the form of infrastructure and funds for making the servic