1.0 This petition is directed against the judgement and award dated 30.06.2010 passed by the learned Industrial Tribunal, Central, Bhavnagar, in Reference I.T.C. (New) No.5 of 2009 whereby the Tribunal has passed the following order:
"1.
The Reference made by the Second Party concerned workmen are granted partly, accordingly.
0 It is declared that, three employees Mr. Jitubhai B. Zankhara, Dilipbhai B. Mandaviya and Mr. Kishore C. Sheth of the State Bank of Saurashtra Employees Consumer Coop Stores Ltd. Bhavnagar are the employees of State Bank of India i.e. First Party No.1 will treat the aforesaid workmen as Class-IV, workmen of the State Bank of India from 01-04-1994, within the 30 days from the date of publication of this award.
The Second Party concerned workmen will be entitled to get the deference of payment but, Bank has a right to deduct the deference of payment which the concerned workmen have already got as workmen of the Consumers Stores. Mr. Kishroe C. Sheth who has already retired from the services will entitled to get the differences up to the date of his retirement.
The Second Party concerned Union Bhavnagar Jilla Mazdoor Sangh, Bhavnagar is entitled to get Rs.5000/- (Rupees Five thousand only) from the First Party No.1 State Bank of India, Bhavnagar and from the First Party No.2 the State Bank of Saurashtra Employees Consumers Stores Ltd, Bhavnagar, jointly and severally." (sic) 2.0 Mr.
Mihir Thakore, learned Senior Advocate submitted that the Cooperative Store is set up by a few like minded employees of the bank under the provisions of The Gujarat Cooperative Societies Act for their benefit and it is an independent body under the said Act. He further submitted that it is not an obligation on the part of the Bank to run a cooperative store nor is it compulsory for the employees of the bank to become members of the cooperative store. He therefore submitted that the order of the Tribunal is illegal and erroneous.
3.0 Mr.
Thakore, learned Senior Advocate submitted that in view of the decision of the Hon'ble Supreme Court in case of Employers in relation to the Management of Reserve Bank of India Vs. Their Workmen reported in AIR 1996 Supreme Court 1241 the order passed by the learned Tribunal is required to be stayed.
"12.
In applying the law laid down by this Court, as stated above, we should distinguish those line of cases, where a statutory liability is cast on the employer for maintaining the canteen viz. as per Section 46 of the Factories Act or due to the extended meaning given to the definition of the word 'employer' in the particular statute, any other person like a contractor to whom an owner of the undertaking had entrusted the execution of any work which was ordinarily part of an undertaking or industry was also covered. See in this connection Saraspur Mills Co. Ltd. v. Ramanlal Chimanlal [1974(3) SCC 66] and Basti Sugar Mills Ltd. v. Ram Ujagar (AIR 1964 SC 355). We should at once state that the principles laid down in those line of cases cannot apply herein, since admittedly (a) no statutory liability is cast on the Bank to run a canteen and Section 46 of the Factories Act is inapplicable herein; and (b) the Industrial Disputes Act does not contain an extended definition of the word employer'.
19. We shall now take up the case of canteens run by the Co-operative Societies. Apart from subsidy, and other matters provided free of charge like water, electricity, premises, furniture etc., the Tribunal has adverted to the fact that the licence renewal charges paid by the committee are reimbursed by the Bank. Neither the strength of the workmen employed, nor the wages can be revised without the prior sanction of the Bank and so these canteens, are nonstatutory recognized canteens, and there is direct control exercised by the Bank in the form of nominating the representative of the Bank. Here again none of the peculiar aspects adverted to by this Court in M.M.R. Khan's case (supra) regarding the non-statutory recognized canteens are present. The mere fact that the Bank nominates its representative the committee or reimburses the licence renewal charges will not in any way provide any direct control.
21. We, therefore, hold that the assumption made by the Tribunal that the instant case clearly falls within the ratio laid down by this Court in M.M.R. Khan's case (supra), is totally unjustified and incorrect. On the facts of this case, in the absence of any statutory or other legal obligation and in the absence of any right in the Bank to supervise and control the work or the details thereof in any manner regarding the canteen workers employed in the three types of canteens, it cannot be said that the relationship of master and servant existed between the Bank and the various persons employed in three types of canteens. 166 persons mentioned in the list attached to the reference are not workmen of the Reserve Bank of India and that they are not comparable employees employed in the officers lounge. Therefore, the demand for regularization is unsustainable and they are not entitled to any relief. We hold that the award passed by the Tribunal is factually and legally unsustainable."
4.0 Mr.
Thakore, learned Senior Advocate further placed reliance on the decision on the decision of the Hon'ble Apex Court in case of State Bank of India and others and State Bank of India Canteen Employees' Union ( Bengal Circle) and others- 2000-I-LLJ 1441. He submitted that this matter is squarely covered by the decision of the said decision.
5.0 Mr.
Thakore, learned Senior Advocate further contended that the Bank has no control whatsoever on the canteen which is given to some cooperative society.
6.0 Mr.
Shukla, learned advocate appearing for the respondent submitted that the old reference number was 12 of 1994 and it was decided on 30.06.2010. The present petition was moved after almost one year i.e. on 10.10.2011. He further submitted that out of the three workmen on whose behalf the industrial dispute was raised by the Respondent Union, one workman Shri Jitubhai B. Jhakra has retired w.e.f. 31.05.2992 and Shri Kishorbhai C. Sheth is physically disabled and can walk with the help of walker only and that too with great difficulty. He will retire in July 2014. Shri Dilipbhai R. Mandavia, is 57 years old and will retire in June 2012.
7.0 Mr.
Shukla, learned advocate for the respondent placed reliance on the decision of the Hon'ble Apex Court in case of Indian Overseas Bank versus I.O.B Staff Canteen Worker's Union and another reported in (2000) 4 SCC 245 wherein in para 20 and 21 it is held as under:
"20. The factual findings recorded by the Tribunal and the Division Bench as also the materials relied upon therefor, have been already set out in detail, supra and it is unnecessary to refer to them in greater detail once over again. The canteen in question was being run from 1.1.73 and even before that, indisputably, the Bank itself had arranged for running of the same through a contractor and similar arrangement to run through a contractor was once again made by the Bank on its closure on 26.4.90, though after a period of some break from 21.10.92. Besides this, the nature and extent of assistance, financial and otherwise in kind, provided which have been enumerated in detail, would go to establish inevitably that the Bank has unmistakably and for reasons obvious always undertaken the obligation to provide the canteen services, though there may not be any statutory obligation and it will be too late to contend that the provision of canteen had not become a part of the service conditions of the employees. The materials placed on record also highlight the position that the Bank was always conscious of the fact that the provision and availing of canteen services by the staff are not only essential but would help to contribute for the efficiency of service by the employees of the Bank. That it was restricted to the employees only, that the subsidy rate per employee was being also provided, and the working hours and days of the canteen located in the very Bank buildings were strictly those of the Bank and the further fact that no part of the capital required to run the same was contributed by anybody self, either the Promoters or the staff using the canteen are factors which strengthen the claim of the workers. It was also on evidence that the canteen workers were enlisted under a welfare fund scheme of the Bank besides making them eligible for periodical medical check up by the doctors of the Bank and admitting them to the benefits of the Provident Fund Scheme. The cumulative effect of all such and other facts noticed and considered in detail provided sufficient basis for recording its findings by the Tribunal as well as the Division Bench of the High Court ultimately to sustain the claim of the workers, in this case.
21.0 The learned Single Judge seems to have not only overlooked certain relevant material but by adopting a negative approach had belittled the relevance and importance of several vital and important factual aspects brought on record. If on the facts proved, the findings recorded by the Tribunal are justified and could not be considered to be based upon 'no evidence, there is no justification for the High Court in exercising writ jurisdiction to interfere with the same. The promoters of the canteen being permanent employees in the service of the Bank, permitted to run the canteen, by merely being in control of the day-to-day affairs of the canteen, the Bank cannot absolve of its liabilities when it was really using the canteen management as its instrumentality and agent. The cloak apart, the 'voice definitely is that of Jacobs. Consequently, we could neither find any error of law or other vitiating circumstances in the judgment of the Division Bench nor any infirmities in the process of reasoning or gross unreasonableness and absurdities in the conclusions arrived at to restore the Award, so as to justify and warrant our interference in the matter."
8.0 He submitted that in the aforesaid decision, both the above judgements have been relied upon and has been considered.
9.0 Mr.
Shukla, learned advocate further relied on the decision in case of Parimal Chandra Raha and others versus Life Insurance Corporation of India and others reported in 1995 SCC 611 .
0 Heard the learned Advocates for the parties. RULE.
11.0 The Tribunal after considering the evidence on record, has come to the conclusion that the employees of the consumer shop are the employees of the bank and has given the benefits almost after 17 years. In that view of the matter, granting interim relief will amount to allowing this petition at this stage and at the same time if interim relief is not granted no prejudice is likely to be caused to the petitioner. The respondents who are working in the cooperative society have been deprived of their legitimate rights since long and the competent court has decided the same after 18 years. Therefore this is not a case where interim relief is required to be granted. Hence the interim relief is refused.
12.0 However, it is clarified that the payment which will be made will be subject to the result of the petition. On the facts and circumstances of the case, it will be open to the parties to move for early hearing of the petition.
(K.S.JHAVERI, J.) niru* Top