IMPORTANT POINT
Where though statutory canteen has been run through private contractor the Company has absolute control over all aspect of the running of the canteen and the contractor absolutely has no control, the workmen could be treated as employee of Company.

Headnote:(i) Constitution of India-Article 226-Writ petition by Workmen of Public Limited Company against Company-Seeking mandamus to three workmen of statutory canteen as employee of Company-Not maintainable-Merely because company maintains canteen as mandated by Factories Act it could not be said that Company performs public duty-Company not amenable to writ jurisdiction.
       It is only in the circumstances when the authority or the person performs a public function or discharges a public duty Article 226 of the Constitution can be invoked. (Para 8)
       In the instant case, the appellant is engaged in the manufacture and sale of cigarettes. Manufacture and sale of cigarettes will not involve any public function. Incidental to that activity there is an obligation under Section 46 of the Act to set up a canteen when the establishment has more than 250 workmen. That means, it is a condition of service in relation to a workman providing better facilities to workmen to discharge their duties properly and maintain their own health or welfare. In other words, it is only a labour welfare device for the benefit of its work force unlike a provision where Pollution Control Act makes it obligatory even on a private company not to discharge certain effluents. In such cases public duty is owed to the public in general and not specific to any person or group of persons. Further the damage that would be caused in not observing them is immense. If merely what can be considered a part of the conditions of service of a workman is violated then we do not think there is any justification to hold that such activity will amount to public duty. Thus, we are of the view that the High Court fell into error that appellant is amenable to writ jurisdiction. (Para 8)
       (ii) Labour Law-Statutory canteen established under Section 46 of Factories Act-Workmen of canteen-When can be treated as employee of Company-Canteen originally run and maintained by Company-Later management given to independent contractor-Workmen continue to be same irrespective of change of contractor-Company having absolute control in all respect-Contractor absolutely having no control in any respect-Workmen of canteen are employee of company.
       In Indian Petrochemicals Corporation Ltd. & Anr. v. Shramik Sena & Ors., 1999(6) Supreme 542 : (1999) 6 SCC 439 the Supreme Court in order to find out whether workmen of statutory canteen are employee of Company adopted some of the tests as follows :
        1. The canteen has been there since the inception of the appellant s factory.
        2. The workmen have been employed for long years and despite a change of contractors the workers have continued to be employed in the canteen.
        3. The premises, furniture, fixture, fuel, electricity, utensils, etc. have been provided for by the appellant.
        4. The wages of the canteen workers have to be reimbursed by the appellant.
        5. The supervision and control on the canteen is exercised by the appellant through its authorised officer, as can be seen from the various clauses of the contract between the appellant and the contractor.
        6. The contractor is nothing but an agent or a manager of the appellant, who works completely under the supervision, control and directions of the appellant.
        7. The workmen have the protection of continuous employment in the establishment. (Para 9)
       In the present case, the findings recorded by the learned Single Judge on examination of the facts available is that there had been a canteen within the premises of the appellant up to the year 1982 and it is only from 1982 onwards the management of the canteen has been entrusted to a private contractor; that even after change of the contractor, the canteen workers have continued to be the same irrespective of the change in the contractors from time to time; that wages were paid to the workmen in the canteen by the management through the contractor; that the appellant has provided the accommodation, furniture, fuel, electricity, utensils, etc.; that the management exercises control over the standard in quality, quantity and the rate of the food items supplied to the workmen for whose benefit the canteen is established. Thus, these circumstances clearly indicate that the appellant has a complete control over the activities in respect of the canteen and the contractor has absolutely no discretion either in regard to the menu, quality and quantity of the food items much less the rate at which the same are supplied to the workmen. When the management of the appellant exercises such a complete control, the canteen shall be deemed to be run by the management itself. The appellant in any manner cannot controvert these facts. Therefore, the High Court rightly held that the workmen are employees of Company. (Paras 10 and 11)

JUDGMENT

Rajendra Babu. J.-Civil Appeal No. 670 of 1997:

The appellant is a company incorporated under the Companies Act, 1956 with the object of manufacture and sale of cigarettes. Members of general public are the shareholders and the shares of the company are traded in through various stock exchanges in the country. A petition was filed under Article 226 of the Constitution by respondent No.1 seeking for a writ of mandamus to treat the members of the respondent - union who are employees working in the canteen of the appellant s factory as employees of the appellant and for grant of monetary and other consequential benefits. The canteen is provided in the factory premises of the appellant pursuant to Section 46 of the Factories Act, 1948 (hereinafter referred to as the Act ), which obliges a factory employing more than 250 workmen to provide such a canteen. On behalf of the respondents, it is contended that the appellant had been managing the canteen up to the year 1982 and thereafter introduced the contract system for maintaining the canteen so established; that though the management of the canteen had been entrusted to the contractors from time to time, the personnel employed in the canteen were retained by all the contractors and they have been paid salaries through contractors; that the workmen employed in the canteen have been provided with ESI benefits under the Code No. VST, the appellant, and benefits arising under the Employees Provident Funds Act are also provided similarly; that the appellant has also provided a building along with furniture, utensils, cutlery, gas, electricity, water supply and other facilities; that the contractor is engaged only to prepare the food and serve it to the employees and that the quality of the food and the rates are controlled by the management of the appellant.

2. On behalf of the appellant, contention was raised that no writ would lie against the appellant inasmuch as the appellant is a company, which is not an authority or a person against whom a writ would lie. It was submitted that they do not discharge any public duty and hence the writ cannot be issued. On the merits of the matter, the appellant disputed various questions of fact and urged that the decision of this Court in Parimal Chandra Raha v. Life Insurance Corporation of India1, would not be applicable to the appellant in the facts and circumstances of the case. The learned Single Judge, who decided the matter in the first instance, held that a writ would lie against a company under a private management following the decision in T. Gattaiah v. Commissioner of Labour2, in which it was held that establishment of a canteen and its maintenance is a statutory requirement; under Section 46 of the Act a public duty is imposed on the company to establish and maintain the canteen; inasmuch as members of the respondent-union are working in the canteen they are entitled to seek a mandamus. He, therefore, held that when a public duty is called upon to be discharged by a private management, a writ of mandamus would lie and could be issued under Article 226 of the Constitution. He thus rejected the contention.

3. On the merits of the matter, the learned Single Judge followed the decision in Parimal Chandra Raha s case holding that when the duty had been enjoined on the appellant to provide and maintain a canteen facility under the Factories Act it becomes the obligation of the appellant to establish a canteen and that is what the appellant had done. Therefore, when that work is got done through somebody else by providing the necessary infrastructure and other facilities, when the personnel did not change though the contractors changed from time to time, he held that they become employees of the appellant. On that basis the learned Single Judge granted relief s sought for by the respondents, however, imposing certain restrictions with regard to the age, being medically fit, on the date of the writ petition, had put in a minimum of three

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2000 Supreme(SC) 2001

IMPORTANT POINTWhere though statutory canteen has been run through private contractor the Company has absolute control over all aspect of the running of the canteen and the contractor absolutely has no control, the workmen could be treated as employee of Company.

Cases Referred (5)

IMPORTANT POINT
Where though statutory canteen has been run through private contractor the Company has absolute control over all aspect of the running of the canteen and the contractor absolutely has no control, the workmen could be treated as employee of Company.