Anil Kumar v. Air India Ltd

MUKUNDAKAM SHARMA, C. J.

(1) THE appellants herein are the alleged employees in a canteen run by an agency of the principal employer, that is, Air India. A writ petition was filed by the appellants claiming that the employees working in a statutory canteen run by an agency of the principal employer would ipso facto be treated as the employees of the principal employer and on the basis of the aforesaid statement the appellants prayed for issuance of a direction to the respondents No. 1 and 2, that is, Air India to treat them as their employees.

(2) THE aforesaid writ petition was disposed of by the learned Single Judge directing that the Industrial Tribunal, along with the dispute already referred to it, would also decide the question raised by the appellants and adjudicate the rights of the appellants/workmen as on the date of reference. Being aggrieved by the said order, the present appeal has been filed.

(3) WHEN the appeal was listed for hearing, none appeared for the appellants either on 1. 12. 2005 or on 30. 01. 07 when the matter came up for hearing again. Today also, none is present for the appellants. However, counsel for the respondents 3 and 4 has appeared and brought to our notice the decision of the Division Bench of this Court rendered in LPA 521/99, disposed of on 29. 11. 2001. The said order of the Division Bench reads as follows:-LPA 521/99. The question which arises for consideration in this appeal is as to whether the applicant can seek for a relief by way of writ of mandamus directing the respondent to regularise their service, inter alia, on the ground that they are employees of the contractors in a statutory canteen. The question raised is now squarely covered by a decision of the Constitution Bench of this Court in Steel authority of India Ltd. Vs. National Union Waterfront Workers 2001 (7) SCC 1. Counsel appearing for the appellant, however, submits that employees of the statutory canteen stand on a different footing having regard to the provisions of Section 46 of the Factories Act. It is not a case where it stands admitted that Section 46 of the Factories Act would be applicable. Case of the respondent is that having regard to the number of employees, the canteen is being run by way of contract and not in discharge of any statutory duty. In this view of the matter we are of the opinion that the remedy of the petitioner, if any, would be to raise an industrial dispute. Views of ours stand fortified by a recent decision of the Apex Court in Hari Shanker Sharma V. Artificial Limbs manufacturing Corporation, Civil Appeal No. 7731 of 1997 disposed of on 26. 11. 2001 wherein it was held: 'the employees in the canteen were the employees of respondent No. 1 is unacceptable. First the respondent No. 1 has disputed that Section 46 of the Factories Act at all applies to it. Indeed, the High Court has noted that this was never the case of the appellants either before the Labour court or the High Court. Second assuming that Section 46 of the Factories Act was applicable to the respondent No. 1, it cannot be said as an absolute proposition of law that whenever in discharge of a statutory mandate, a canteen is set up or other facility provided by an establishment, the employees of the canteen or such other facility become the employees of that establishment?. For the reasons stated above, we find no merit in this appeal which is accordingly dismissed. We, however, place on record that the appellant states that no dispute is pending in relation to subject matter of this appeal. If that be so, it would be open to the appellant to raise such a dispute?.

(4) ON going through the decision rendered in the said appeal, we are of the considered opinion that the facts of the present case are similar. We find no reason to take a different view in view of the fact that while coming to the aforesaid conclusion the Division Bench in LPA 521/99 relied upon the decision of the Constitution Bench of the Hon'ble Supreme Court in Steel Authority of india Ltd. Vs. National Union Waterfront Workers 2001 (7) SCC 1. Since the question raised in the present appeal is governed and squarely covered by the aforesaid decision, we must hold that the present appeal has no merit and the same is accordingly dismissed.

(5) IN this connection, we may also state that while issuing notice on the present appeal, reference was made by the learned Division Bench of this Court to the decision of the Hon'ble Supreme Court in Indian Petrochemicals corporation Ltd. and Anr. Vs. Shramik Sena and Ors reported in JT 1999 5 SC 340. The said decision of the Supreme Court was referred to and considered in the decision of Steel Authority of India Ltd. (supra) and, therefore, in our considered opinion the decision in Steel Authority of India Ltd. would govern this case.

(6) LPA 189/1999 stands dismissed with the above observations and order. We appreciate the efforts of the counsel for the respondents 3 and 4 for competently bringing to our notice the judgments cited above.