IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15276 of 2004(R)
1. M/S. BALMER LAWRIE & CO.LTD.,
... Petitioner
Vs
1. THE GENERAL SECRETARY,
... Respondent
2. THE EMPLOYEES CO-OPERATIVE SOCIETY LTD.
3. INDUSTRIAL TRIBUNAL, ALAPPUZHA.
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :SRI.V.G.ARUN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/06/2008
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 15276 of 2004
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Dated this, the 2nd June, 2008.
J U D G M E N T
Petitioner is the management in I.D.No. 88/2000 before the
Industrial Tribunal, Alappuzha. The petitioner is challenging Ext. P1
award passed by the Tribunal in that I.D. The issue referred for
adjudication was:
“Whether the action of the management of Balmer Lawrie & Co.
Ltd., Aroor in denying the employment to 16 canteen workers (list
enclosed) and also not treating them as Company’s employees is
justified? If not, to what relief the workers are entitled?”
The Tribunal noted that the canteen is one managed by the petitioner
under Section 46 of the Factories Act and relying on the decision of
the Supreme Court in National Thermal Power Corporation v. Karri
Pothuraju and others, 2003-III LLJ 567, held that the workmen of the
canteen are workmen of the petitioner although engaged through a
contractor. The petitioner submits that the Supreme Court itself had,
in a later decision in Haldia Refinery Canteen Employees Union and
another v. Indian Oil Corporation Ltd. and others, 2005-II LLJ 684,
held that employees in a statutory canteen run by a contractor are
employees of the principal employer only for the purpose of Factories
Act and not for any other purpose. The petitioner therefore submits
that simply because the canteen is a statutory canteen ipso facto it
does not lead to the inference that the canteen employees are
employees of the factory. He would further submit that since the
Union has not adduced any evidence to show that the contract
between the petitioner and the contractor is a sham document,
without which the Tribunal could not have come to the conclusion
that the workers under the contractor are regular workers of the
Company.
2. I have considered the contentions of the petitioner in detail.
3. Counsel for the 1st respondent Union is not present.
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4. A reading of Ext. P1 award would show that the Tribunal
solely relied on the Supreme Court decision in National Thermal
Power Corporation’s case (supra) to hold that since the canteen is a
statutory canteen, the canteen employees are employees of the
petitioner. In view of the decision of the Supreme Court in Haldia
Refinery’s case (supra), I do not think that the Tribunal, without any
further evidence to show that the facts and circumstances would lead
to the conclusion that the workers of the contractor were direct
employees of the Company, could have held that the workers are
workers of the petitioner. As held by a Division Bench of this Court in
Hindustan Newsprint Industrial Canteen Workers Union v. Hindustan
Newsprint Ltd., 2006 KLT 103, it all would depend on the evidence
on various aspects such as, whether the contract entered into
between the principal employer and the contractor is a bona fide or a
sham transaction, whether the terms of the contract would amount to
in fact absolute control on the part of the principal employer in the
running of the canteen, whether the principal employer had any role
in the recruitment of the employees, whether the principal employer
had control over the employees of the canteen etc., etc.,. Here, the
Tribunal does not refer to any evidence whatsoever other than the
fact that it is a statutory canteen under Section 46 of the Factories
Act to hold that the workers are direct employees of the Company. I
am of opinion that without any evidence regarding the fact as to
whether the contract between the petitioner and its contractor is a
sham document and other circumstances leading to the irresistible
conclusion that the workers were actually workers of the Company,
the Tribunal could not have come to that conclusion. Therefore,
clearly Ext. P1 award is unsustainable. Accordingly, the same is
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quashed. I hold that in that I.D., the workers are not entitled to any
reliefs.
The writ petition is disposed of as above.
Sd/- S. Siri Jagan, Judge.
Tds/