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2018 Supreme(All) 1939
IN THE HIGH COURT OF ALLAHABAD
Sangeeta Chandra, J.
M/s. N.T.P.C. Ltd. - Appellant
Vs.
Presiding Officer, Industrial Tribunal - Respondent
Writ C. No. 7674 of 2011
Decided On : 21-02-2018
Advocate Appeared:
For the Appellant : Vivek Ratan Agrawal, Vijay Ratan Agrawal
For the Respondent: Anil Kumar, Srivastava, Arun K. Singh Deshwal, D.K. Maurya, Mani Shanker Sahu, P.K. Asthana, S.B. Maurya, Sanjay Kumar Singh
Headnote:
WRIT PETITION - CHALLENGING AWARD PASSED BY PRESIDING OFFICER OF INDUSTRIAL TRIBUNAL-I, U.P., ALLAHABAD - AWARD HOLDING WORKMEN OF CANTEEN TO BE EMPLOYEES OF NTPC AND THUS ENTITLED TO SAME DESIGNATION, WAGES UNDER THE BENEFITS/FACILITIES AS GIVEN BY NTPC TO ITS PERMANENT EMPLOYEES - AWARD PASSED WITHOUT APPLICATION OF MIND AND IS PERVERSE, AS IT RECORDS CONCLUSIONS, WHICH ARE CONTRARY TO THE RECORD - AWARD IMPUGNED - DISMISSED.
Fact of the Case:
NTPC challenged the Award dated 28.8.2010 published on 18.11.2010 in Adjudication Case No. 20(1)/2003 passed by the respondent no. 1 - the Presiding Officer of Industrial Tribunal-I U.P., Allahabad with a further prayer for consequential reliefs. The workmen of the canteen have been held to be employees of the NTPC and thus entitled to same designation, wages under the benefits/facilities as given by NTPC to its permanent employees.
Finding of the Court:
The Tribunal misread the evidence produced by the petitioner as well as respondent no. 3, and recorded findings which were totally perverse, and contrary to the records produced and on the basis of the said findings drew illegal and arbitrarily conclusions.
Issues: Whether the concerned workmen/employees were appointed by the NTPC and the respondent no. 1. presumed facts which were not even pleaded on behalf of the respondent nos. 4 to 47.
Ratio Decidendi: The Supreme Court in National Thermal Power Corporation Ltd. Vs. Karri Pothuraju, 2003 99 FLR 8 was dealing with a similar case wherein the NTPC had set up Super Thermal Power Station in Andhra Pradesh and for its nearly 2300 employees and had set up in canteen facilities under Section 46 of the Factories Act. Such canteen facilities were provided through 54 persons said to have been working in canteen in various capacities - cooks, cleaners, helpers, waiters etc. The NTPC had granted substantial subsidy at one point of time to the tune of Rs. 1,95,000/- for buying provisions etc. and as working capital for setting up these canteen facilities and the employees of the canteen had been working since long, some of them from 1983 onwards, though engaged by contractors. The Deputy Manager (Administration) and his subordinates supervised working of the canteen in respect of preparation of eatable items, service and maintenance, and to ensure quality of service. The employees of the canteen had filed a writ petition for issuance of a direction to the appellants to regularise their services with attendant benefits. The Writ-Court did not accept the claim of the workers and was of the view that the workers in the canteen run by Railways and LIC stand on a different footing and the writ petition therefore came to be dismissed. The workers filed an Appeal, the Division Bench of Andhra Pradesh High Court allowed the Appeal. The NTPC thereafter approached the Supreme Court placing reliance upon judgment rendered by it in Indian Petro Chemicals Corporation Ltd and another Vs. Shramik Sena, 1999 83 FLR 75 (SC) and it was argued that the workers were indisputably engaged by the contractor and cannot claim for regularisation of their services in the public sector undertaking, as it was against the recruitment Rules and Policy of the Government.
Final Decision: The writ petition is hence dismissed. No order as to costs.
Sangeeta Chandra, J.
This writ petition has been filed by the petitioner - M/s National Thermal Power Corporation Ltd. (herein after referred to as the NTPC) which is a Central Government Public Sector undertaking and is engaged in the production/generation of electricity and other related activities. The Singrauli Super Thermal Power Station (herein after referred to as the SSTPS) at Shaktinagar, Sonebhadra is one power station set up by NTPC sometime in the year 1982.
2. The petitioner challenges the Award dated 28.8.2010 published on 18.11.2010 in Adjudication Case No. 20(1)/2003 passed by the respondent no. 1 - the Presiding Officer of Industrial Tribunal-I U.P., Allahabad with a further prayer for consequential reliefs.
3. It is the case of the petitioner that SSTPS Karmchari Sahkari Canteen Samiti Ltd. is a registered Cooperative Society of the employees of the petitioner and is running the workers canteen on contract as per Rule 68 of the U.P. Factories Rules, under the U.P. Factories Act, 1948. The respondent nos. 4 to 47 were employed in the canteen of the factory by this Cooperative Society, which is the respondent no. 3.
4. By the impugned Award, the workmen of the canteen have been held to be employees of the NTPC and thus entitled to same designation, wages under the benefits/facilities as given by NTPC to its permanent employees.
5. It is the case of the petitioner that the Award impugned has been passed without application of mind and is perverse, as it records conclusions, which are contrary to the record. The NTPC has approximately 1600 employees at its power station at Shaktinagar, Sonebhadra and under Section 48 of the Factories Act, it is the statutory obligation of the occupier of a factory to provide for a canteen for the use of its employees. A canteen was set up in the premises of the factory by the NTPC, which was earlier being run by one contractor by the name of M/s K.M. Maheshwari w.e.f. 1983 till April 1985. Since the canteen services of the contractor were not satisfactory, the NTPC decided to have the canteen run/managed through a Cooperative Society of workers/employees of the NTPC, in accordance with U.P. Factories Rules, 1950.
6. The Adhoc Committee of the Cooperative Society was set up with employees of the SSTPS on 18.4.1985 and on 19.4.1985, the said Adhoc Committee informed the NTPC that it would be taking over the canteen and managing it w.e.f. 1.5.1985. The Cooperative Society - respondent no. 3 thereafter also applied for its registration in July 1985 before the District Assistant Registrar under the U.P. Cooperative Societies Act, 1965 and due to prolonged correspondence undertaken by the Additional District Cooperative Officer, Mirzapur, District Assistant Registrar, Cooperative Societies, Mirzapur and Deputy Registrar Cooperative Societies, Varanasi pertaining to the said application for registration, the registration certificate was actually issued only on 9.3.1987.
7. In the meanwhile w.e.f. April 1985, the respondent no. 3 started the process of appointment of a cooks, Masalchi, waiters and salesman etc. for running of the said canteen and issued advertisements in newspaper as well as pasted them on the notice board of the factory. Copies of such advertisements have been filed as Annexure to the writ petition, and applications made by several of the respondents for being appointed on different posts in the canteen have also been filed. The appointments were thereafter made by the respondent no. 3 and salaries were also being paid by the respondent no. 3.
8. In 1987, a Writ Petition No. 1255 of 1987 was filed by Canteen Karmchari Sangharsh Samiti against the NTPC praying for issuance of a mandamus to the NTPC to treat them as employees of the NTPC, and they be given the same benefits as were being given by NTPC to its own employees.
9. The writ petition was dismissed on 19.12.1994 and a Special Appeal No. 9 of 1995 was filed thereafter. During the pendency of the said Speci
