The New India Assurance Co. Ltd. vs Workman C. Gnanam and The Industrial Tribunal Tamil Nadu

A.K. Rajan, J.—The petitioner has filed the writ petition for issuance of a writ of Certiorarified Mandamus calling for the records in I.D. No.

20 of 1997 on the file of the 2nd respondent, viz., The Industrial Tribunal, Chennai, Tamil Nadu and quash the order dated 10.2.2000.

The writ petition has been filed against the award of the Industrial Tribunal. Brief facts that are necessary of the disposal of the case are as

follows: The 1st respondent herein was engaged as a Care-taker in the transit Camp premises of the petitioner at Chennai for a period of six

months from 23.07.1990 to 22.02.1991. On completion of the said six months, the contract was renewed till 30.05.1993. Thereafter, the contract

was not renewed. When a dispute was raised the first respondent referred the matter before the Assistant Labour Commissioner at Chennai for

conciliation. The conciliation failed and the conciliation failure report was also filed on 31.5.95. Thereafter, the matter was referred to the Industrial

Tribunal. The Industrial Tribunal after recording the evidence and filing of documents by both side, passed an award holding that the first

respondent is entitled for regularisation. Aggrieved by the award of the Tribunal, the present writ petition has been filed.

The learned counsel for the petitioner submits that the Tribunal has erroneously relied upon the decision of the Supreme Court reported in

Parimal Chandra and Others Vs. Life Insurance Corporation of India and Others, wherein the canteen employee of Indian Railways was

reqularised. In the case of Indian Railways, there was an obligation for statutory duty on the part of the railways to maintain the canteen. Therefore,

that decision was rendered by the Supreme Court in that case. But, so far as the petitioner is concerned, there is no statutory requirement to have

the transit camp. Therefore, the transit camps are not statutory obligations to be maintained. Hence, the petitioner who was a person employed on

contract basis cannot be regularised. For the facts of the present case, the aforesaid decision of the Supreme Court is not applicable at all. The

counsel for the petitioner submitted that for the facts of the present case, the decision of the Supreme Court reported in State Bank of India and

Others Vs. State Bank of India Canteen Employees'' Union (Bengal Circle) and Others, is applicable squarely where the Supreme Court has held

that `it nowhere mentions that Banks shall provide canteens for the staff. Therefore, it is difficult to accept the contention of the learned counsel for

the employees that the aforesaid paras cast an obligation on the S.B.I. for running canteen.'' Further, the Supreme Court has held that employees

of the non-statutory unrecognised canteen employees of such canteen are not employees of the Principal employer. Therefore, there is no master

and servant relationship between the employee and the petitioner. Therefore, as per this decision, there is no statutory requirement to maintain

transit camp. There is no master and servant relationship between the first respondent and the petitioner herein and hence, the first respondent

cannot be regularised on the ground that he worked for more than 240 days within a period of one year and therefore, the Tribunal has erred in

passing the award regularising the first respondent herein and hence, it is liable to be set aside.

This argument is raised only before this Court. It was not raised before the Tribunal. Before the Tribunal, the petitioner accepted that the first

respondent was a workman and he was paid of the same wages as that a regular sub-staff and annual increments and allowances were also given

by the management. Except for an order of regularisation, the concerned workman was enjoying all the benefits available to a regular sub-staff.

Having accepted the same, the petitioner cannot now change its stand and contend that the first respondent is not its employee at all. The argument

of the learned counsel for the petitioner is unsustainable. It is seen from the award of the Industrial Tribunal that the first respondent was paid the

same wages on par with the regular staff. He was also paid the annual increments and other allowances like regular sub-staff. Only the formal

regularisation order was not given to him. In view of the admission made by the counsel for the petitioner before the Tribunal, it is estopped from

contending that first respondent was not its employee. Admittedly, the first respondent has worked for more than 240 days. In fact, he worked

continuously from 23.7.1990 till 30.5.93, for a period of almost three years. Therefore, as per Tamil Nadu Industrial Establishment(Conferment of

Permanent Status to Workmen) Act, 1981, the first respondent is entitled for regularisation.

Therefore, there is no infirmity or illegality in the award passed by the Industrial Tribunal and the same is legally sustainable. Hence, the writ

petition is dismissed. No costs.