Canteen workers under pervasive control of employer are entitled to absorption as regular employees, but relief can be restricted based on date of filing and order due to delay.

COMMON JUDGMENT

(Judgment of this Court was delivered by M.S.RAMESH,J)

These Writ Appeals have been filed to set aside the impugned order passed in W.P.No.10907 of 1998 dated 26.02.2024.

2.It is the case of the Tuticorin Port Trust Democratic Staff Union that the canteen at the Tuticorin Port Trust was established in the year 1973 and though the canteen is under the pervasive control of the Port Trust, the canteen workers have not been absorbed till date. With this broad claim, they had filed a Writ Petition in W.P.No.10907 of 1998, seeking for issuance of Writ of Mandamus, directing the Port Trust to absorb the departmental canteen workers as the employees of the Port Trust with consequential benefits, including regular pay scale and other benefits. The learned Single Judge, by an order dated 26.02.2024, had allowed the Writ Petition and directed the Port Trust to absorb the departmental canteen workers of the Port Trust canteen from the date of filing of the Writ Petition. But, however, ordered the backwages to be paid only from the date of the order passed in the Writ Petition. These directions in the Writ Petition are as follows:-

“24. In fine, this Writ Petition is allowed by directing the respondent to absorb the departmental canteen workers working in the Port Trust canteen managed by the Tuticorin Port Trust Canteen Management Committee. Since, the petitioner had approached this Court only in the year 1998, I am of the view that the workers who were on the rolls of the departmental canteen as on the date of filing the Writ Petition would alone be entitled to relief. The respondent is directed to prescribe the Rules and Regulations and service conditions of such canteen workers including their pay and other attendant benefits, within a period of three (3) months from the date of receipt of a copy of this order.

(b)The respondent may also take into consideration the pay scale prescribed by the Chennai Port Trust in that aspect. The respondent shall also take into consideration the Rules and Regulations prevailing at Chennai Port Trust or in other Ports.

(c)It is also made clear that employees so declared will be entitled for fixation of salary based on the said Rules and Regulations only notionally and they would be entitled to actual monetary benefits from the date of this order.

(d)In case, any of the employees who worked were on the rolls as on date of filing of this Writ Petition all have superannuated thereafter their salary shall also be calculated notionally and their terminal benefits be paid on notionally arrived at last drawn salary to them within a period of eight (8) weeks from the date of finalising of the Rules and Regulations as indicated supra.”

3.The learned Senior Counsel appearing for the Port Trust submitted that the canteen was established by a group of workers and is run by the Canteen Management Committee (CMC). According to him, there are no separate provision of expenditure of the canteen in the Port Trust budget and the Rules framed by the CMC are also not subject to the prior or post approval of the Chairman of the Board. Even the disciplinary proceedings against the canteen workers are conducted by the CMC and the Port Trust has no role in the same. All the pervasive control were only by way of a patronage, which cannot be claimed as total control of the canteen by the Port Trust.

4.The learned counsel appearing on behalf of the Staff Union submitted that under a 12(3) Settlement of the Industrial Disputes Act (ID Act), dated 06.12.1994, in which the Tuticorin Port Trust was also a signatory, it was specifically agreed that the canteen facilities would be provided to its employees. According to him, the Administrator of the Port Trust had also accorded permission for establishing the departmental canteen in the year 1973 itself. The office bearers of CMC was also nominated by the Administrator of the Port Trust. In identical circumstances, the Chennai Port Trust canteen workers were also absorbed as th