BALWANT RAI SALUJA & ANR. ETC. ETC. v. AIR INDIA LTD. & ORS.

17. He has further very rightly placed reliance upon the three Judge Bench decision of this Court in the case of Kanpur Suraksha Karamchari Union v. Union of India & Ors17 . wherein this Court has held with reference to interpreting Section 2(n) and Section 46 of the Factories Act read with Rules of UP Factories Rules 1950 -Rule 1968, Section 7 and after adverting to the Government of India Notification order No. 18/ (1)80/D(JCM) dated 25th July, 1981 accorded sanction to treat all employees of the canteen established in defence industrial establishments under Section 46 of the Act as the government employees with immediate effect and further made observations in the said case that in certain cases, canteens are run by either contractors or co-operative societies or some other bodies.

18. The legal question that arose for consideration of this Court in that case was whether the services of the workers, before they were declared to be government employees should be taken into consideration for purposes of calculating their pension dues on retirement. E.S. Venkataramiah J., as he then was, ih Kanpur Suraksha Karamchari Union (supra), speaking for the Court observed as under:

11. (1988) 4 sec 478. H

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A "4. The Act is applicable both to the factories run by government and the factories run by other private companies, organisations. persons etc. It was enacted for the purpose of improving the conditions of the workers in the factories. Section 46 of the Act reads thus: B '46. Canteens.-(1) The State Government may maht:: ru!es requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier c for the use of the workers.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for-

D ( a) the date by which such canteen shall be provided;

(b) the standards in respect of construction, accommodation, furniture and other equipment of the canteen; E (c) the foodstuffs to be served therein and the charges which may be made therefor;

(d) the constitution of a managing committee for the canteen and representation of the workers in the management of the canteen;

(dd) the items of expenditure in the running of the canteen which are not to be taken into account in fixing the cost of foodstuffs and which shall be borne by the employer;

(e) the delegation to the Chief Inspector, subject to such conditions as may be prescribed, of the power to make rules under clause (c).' H 5 ......... The expression "occupier" of a factory is defined

BALWANT RAI SALUJA if. AIR INDIA LTD. & ORS. 757 [V. GOPALA GOWDA, J.] in Section 2(n) of the Act as the person who has ultimate control over the affairs of the factory, provided that (1) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii) in the case of a company, any one of the directors shall be deemed to be the occupier; and (iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local c authority, as the case may be, shall be deemed to be the occupier. Under clause (iii) of Section 2(n) of the Act, in the case of a factory owned or controlled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the occupier. The person so appointed to manage the affairs of the factory of the Central Government is under an obligation to comply with Section 46 of the Act by establishing a canteen for the benefit of workers. The Canteen Managing Committee, as stated above, has to be established under Rule 68 of the Rules to manage the affairs of the canteen. The functions of the Canteen Managing Committee are merely advisory. It is appointed by the Manager appointed under Section 7 of the Act and the Manager is required to consult the Canteen Managing Committee from time to time as to the quality and quantity of foodstuff served in the canteen, the arrangement of the menus, times of meals in the canteen etc. The food, drink and other items served in the canteen are required to be sold on "ho profit" basis and the prices charged are subject to the approval of the Managing G Committee. The accounts pertaining to a canteen in a government factory may be audited by its departmental Accounts Officers."

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A Rule 67, sub-rules (1 ), (2) and (3), is traceable in this case which reads thus:

"67. Equipment:

(1) There shall be provided and maintained B sufficient utensils, crockery, cutlery, furniture and any other equipment necessary for efficient running of the canteen. Suitable clean clothes for employees serving in· the canteen shall also be provided and maintained. c (2) The furniture utensils and other equipment shall be maintained in a class and hygienic condition. A service counter, if provided, shall have a top of smooth and impervious material. Suitable facilities D including an adequate supply of hot water shall be provided for the cleaning of utensils and equipment. (3) Where the canteen is managed by a co- operative society, registered under the Bombay Co- operative Societies Act, 1952, as in force in the E Union Territory of Delhi, the occupier shall provide and maintain the equipment as required under sub- rule (1) for such canteen."

19. In the case in hand, it is an undisputed fact that the F building for running the canteen is situated in the Air India premises. It has got statutory obligation under aforesaid rules read with the Notification of 1991 referred to supra to provide for necessary furniture and infrastructure to run the statutory canteen in the premises of Air India. In the case of Kanpur G Suraksha Karmachari Union referred to supra, it was urged on behalf of the management that before the government orders were passed, the number of years of service rendered by the workmen under the managing Committee before government officially absorbed them, could not be counted as years of service rendered by them. The Court had rejected the

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 759 [V. GOPALA GOWDA, J.] said contention urged on behalf of the management and held that even though the management of the canteen may be by the Managing Committee, the workers were employees of the factory and their services for the purposes of pension would have to be calculated with effect from the date they started working in the canteen. Further, in the said case on the basis of pleadings and legal contentions urged on behalf of the parties it is held that the management of the canteen could be with the certain committee for determining lhe rights of the workers, it was the occupier of the factory who is responsible for them. The said conclusion was_ ~rriveEl-at by this Court in c that case after noticing the rights conferred on the workers though the interpretation was not confined to the provisions of the Factories Act but also regarding retirement benefits payable to the workmen employed in the canteen in the said case. It was further observed by this Court that one test which is derived is in relation to the. question as to who is the occupier of the relevant factory and whose responsibility is it to see whether the canteen is provided and is running in accordance with the provisions of the Factories Act?

·20. Learned senior counsel on behalf of the workmen has also placed reliance upon another judgment of this Court in Parimal Chandra Raha (supra) upon which the CGIT placed reliance in arriving at the right conclusion to hold that the concerned workmen are entitled for absorption. In the above said case, this Court held that the appellant workmen working in the canteens at different offices of LIC across the country were like regular employees of the LIC as the canteens are run and managed by different entities like Canteen Committees, Cooperative Society of the employees and even contractors and directions about how to run the canteen were issued by the LIC. In the said case, the infrastructure, the premises, the furniture, electricity, water etc. were supplied by the LIC. The working hours were also fixed by the LIC. Though LIC was obviously not a factory, and the canteen established and run by it was not a statutory canteen, still this Court held that whether H

760 SUPREME COURT REPORTS [2013] 16 S.C.R.

A the canteen was to be run under an obligatory provision of the Factories Act or under a non-statutory obligation to provide a canteen, the position. is the same and that the canteen workers become a part of the establishment. Therefore, iri the said case it is held that the w~rkmen were entitled to the same wages as B Class-IV employees of the LIC.

21. In another decision rendered by three judge Bench of this Court in the M.M.R.Khan's case, demands were made by the canteen workers in many manufacturing establishments like textiles, sugar mills, rope factories and also in service establishments like RBI, LIC, Railways and Airways for establishment of a statutory canteen where there are more than 250 workmen working in such factory. In public sector undertaking like Airways, there are different types of situations. One of them is the statutory canteen which must be provided by such Industrial establishment which is a factory in terms of the definition of the Factories Act, since manufacturing activities are involved. In the instant case the Air India falls under the category of factory where the occupier is defined under Section 2(n) of the Factories Act and therefore, it is duty bound to provide a canteen to its employees/ workmen which is known as the statutory canteen. It is the statutory obligation on the part of Air India to provide a statutory canteen under the provisions of Factories Act and Rules and therefore, it is one more strong circumstance in favour of the concerned workmen for regularization in their services as permanent workmen by the Air India. The most important legal aspect of the case which is required to be considered by me in this case is that the law stipulates statutory obligation on the part of Air India to provide and maintain statutory canteen to cater the food stuff to its employees/ workmen as per notification referred to supra. Therefore, the canteen facility to be provided to the employees/ workmen cannot be withdrawn by the owner of the establishment, namely, the principal employer. Therefore, the necessary corollary to this condition is the fact that in such a H situation the nature of employment involved in the canteen in

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 761 [V. GOPALA GOWDA, J.] question is perennial in nature. The need for workers to runU:ie canteen by the Management of Air India is permanent.. The vacancies of various posts in the canteen are permanent: i.n nature.

22. From the review of case law on this aspect, two kinds of situations arise, one in which the contractor is changed but not the workers employed. In the Parimal Chandra Raha and the Indian Petrochemicals cases referred to supra, such were the situations, upon which strong reliance is placed by the learned single Judge and the Division Bench of the High Court C to set aside the finding of fact recorded by the CGIT in its award on the points of disputes referred to it. This Court has taken a note of this relevant fact and considered the same in the instant case to decide as to whether the canteen workers should be regularized by the principal employer? The other situation is where the contractor is changed and along with him the workers D also get the boot. The effect of this situation appears that the workers have been temporary. In reality they are kept temporary in order to perpetuate 'unfair labeur practice by the employer, which is not permissible in view of Section 25T of the.l.D. Act read with entry at Serial No. 1O in the Vth Schedule of the l.D. E Act regarding unfair labour practices on the part of the employer. In the case in hand, I hold that Air India is the principal employer and Chefair - an unit under HCI is the contractor, on the basis of the pleadings of the parties and law laid down by this Court referred to supra in the earlier paragraph of this judgment. The CGIT ha.s rightly arrived at the finding that Chefair is the unit of HCI which renews the contract of canteen workers every forty days. Unfortunately, the said workers, have been continued as contract workers in the canteen though they have completed 240 days of continuous service in a year as defined under Section 258 of the l.D. Act which action of the Air India is unfair labour practice and is prohibited under Section 25T of the l.D. Act. In spite of statutory prohibition of employing the concerned workmen in the canteen on contract basis in permanent natu(e of work, the Chefair - a H

762 SUPREME COURT REPORTS [2013) 16 S.C.R.

A unit of HCI and Air India have indulged in unfair labour practices as defined under' Section 2(ra) read with Section 25T and the Vth Schedule of the l.D. Act, with a deliberate intention to deprive the statutory rights of the concerned workmen which is a glaring patent illegality committed by them for which they are B liable to be punished under Section 25U of the l.D. Act read with the Rules.

23. If the case pleaded by Air India and HCI is accepted by the single Judge and the Division Bench of the High Court, C. it amounts to giving a reward to Air India, who is the principal employer. It also amounts to holding that the concerned workmen are contract employees of the contractor and they are not put in the continuous service which amounts to conferring reward upon the HCI and AIR India who have committed illegality. Both the learned single Judge and the Division Bench D of the High Court have erroneously accepted the case pleaded by Air India and HCI which suffers from error in law as it goes against the statutory provisions of the Factories Act, Rules and the l.D. Act. The concerned workmen who are working in the canteen at the relevant time have been working in the vacancies which are permanent in nature. Therefore, they are required to be regularized by the principal employer as permanent workmen and they are also entitled to the consequential benefits since they have rendered their services for more than 3 to 20 years continuously saving the artificial breaks imposed on them by the employer from time to time to deprive them from regularization as permanent employees of the establishment as has been held by the CGIT in its award by accepting the claim of the workmen.

G 24. Further, it is clear from the Rules of 1950 and the Notification of 1991 referred to supra that Air India is the occupier under Section 2(n) of the Factories Act and it must provide and maintain a statutory canteen for its employees/ workmen. The vacancies in various posts that exist for canteen workers are permanent in nature but the Management of HCI H on behalf of Air India has continued them as contract workers

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 763 [V. GOPALA GOWDA, J.] for a long period with a break after 40 days, which is an unfair labour practice on their part though it is prohibited under Section 25T of the l.D. Act. The temporary rotation of concerned workers in the vacancies of the canteen by the HCI, which is an instrum·entality of the state is to countenance a situation where two statutory entities of the above nature collude together to perpetuate 'unfair labour practices' as defined under Section 2(ra) which is enumerated at serial no. 10 under the heading of 'unfair labour practice' on the part of the employer in the Vth Schedule to the l.D. Act. Therefore, this Court is bound to ensure the implementation of all relevant laws, especially those c enacted by the Legislature to fulfil the constitutional obligations under the Directive Principles of State Policy and bring this unholy alliance between Air India and HCI to an end by declaring the canteen workers as employees of the principal employer. D

25. The M.M.R. Khan'.s case referred to supra, fully • supports the finding recorded by the CGIT on the points of dispute in favour of the concerned workmen by directing the Air India to regularize them as canteen workers, At Para 25 of the said judgment the observations made by this Court wtiich are very relevant for our purpose read thus: ·

"25. Since in terms of- the Rules made by the State Governments under Section 46 of the Act, it is obligatory on the railway administration to provide a canteen, and the canteens in question have been established pursuant to the said provision there is no difficulty in holding that the canteens are incidental to or connected with the manufacturing process or the subject of the manufacturing process. The provision of th_e canteen is deemed by the statute as a necessary concomitant of the manufacturing activity. Paragraph 2829 of the Railway Establishment Manual recognises thei obligation on the railway Administration created by the Act and as pointed out earlier paragraph 2834 makes provision for meeting the H

764 SUPREME COURT REPORTS (2013] 16 S.C.R.

A cost of the canteens. Paragraph 2832 acknowledges that although the railway administration may employ anyone such as a staff committee or a co-operative society for the management of the canteens, the legal responsibility for the proper management rests not with such agency but - B solely with the railway administration. If the management of the canteen is handed over to a consumer cooperative society the bye-laws of such society have to be amended suitably to provide for an overall control by the railway administration." c 26. Before applying the legal principles laid down in the above paragraph of the case to the case in hand, it is pertinent to note that at the very outset three kinds of canteens exist in the Railways. They are: (i) Statutory canteens as required under Section 46 of the Factories Act, 1948 where more than 250 D employees are working, (ii) Non-statutory non-recognized canteens which employ 250 or less than 250 employees and hence there is no statutory obligation on the part of the employer to maintain them, where workers exceed hundred and such canteens are set up with prior approval of the Railway Board, E and (iii) Non-Statutory non-recognized canteens where 100 or less than hundred workers work and are set up without prior approval ot the Railway Board.

27Copy pinpoint27. In the decision of this Court in M.M.R. Khan(supra), F the workers engaged in the -first and second category of canteens mentioned above were treated as Railway employees after considering the relevant facts and statutory provisions of the Factories Act and the Rules. Thus. this Court held that the workmen would be entitled to all service conditions prescribed G for them under relevant rules/orders. The relevant paragraph from the said decision reads as under: "30. While discussing above the contention that the employees in the statutory canteens cannot be treated as railway employees even for the purposes of the said Act, H we have referred to the various developments, and

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 765 [V. GOPALA GO\fVDA, J.] documents on record including the court decisions. It is not necessary to repeat them here. In view of the same, the contention advanced by Mr Ramaswamy that the railway administration is engaged in varied welfare activities, and the employees engaged in these activities will also have to be treated as railway employees, in case, the canteen employees are recognized as railway employees does not appeal to us. We express no opinion on the subject as to whether the employees engaged in other welfare activities· will or will not be entitled to the status of the railway employees, since neither they nor the facts pertaining to c them are before us. Our conclusion that the employees in the statutory canteens are entitled to succeed in their claim is based purely on facts peculiar to. them as discussed above. If by virtue of all these facts they are entitled to the status of railway employees and they cannot be deprived D of that status merely bedause some other employees similarly or dissimilarly situated may also claim the "same status. The argument to say the least can only be described as one in terrorem,_ahd as any other argument of the kind has to be disregarded." · E (Emphasis laid by the Court)

28Copy pinpoint28. I have carefully analysed the law enunciated by this Court in M.M.R. Khan's case which throws interesting light on · the history of the canteen workers' litigation which I have carefully considered and applied the legal principle laid down in that case to the fact situation of the case in hand. The canteen workers of the canteen of Railways in Kharagpur approached the High Court of Calcutta praying that they be recognized as Railway workers and that all service conditions available to railway workers be made available to them. The .learned single Judge dismissed the petition. The Division Bench directed the respondents to recognize the workers as Railway employees but rejected their plea for simnar service conditions. The matter came before this Court and the Court H

766 SUPREME COURT REPORTS [2013] 16 S.C.R.

A was inclined to agree with the Division Bench decision of the Calcutta High Court and left it open to the Union of India. The railway board acted on the initiative of this Court and declared that all Kharagpur canteen workers; soon followed b·y all statutory canteen workers across India would be deemed B railway workers, but governed by their earlier service conditions. The prime mover therefore was not the Railway Establishment Manual (REM) but a judicia·I interpretation clubbed with judicial nudging, to achieve the constitutional goals for canteen workers. Therefore the contention urged by Mr. C.U. c Singh, learned senior counsel on behalf of Air India that the decision rendered by this Court in M.M.R. Khan's case is distinguishable from the facts of the instant case, as this Court placed reliance upon the REM and the circulars issued by the Railway Board in the above referred case is wholly untenable in law, for the reason that REM is also invoked by the Railways. I have to state that this Court has not given relief to railway cante~l'.l .Workers because of the REM. On the contrary, it is the statutory status of one type of canteen that was the prime mover, not only for workers to claim their rights, but also for the railways to find a basis for classification and then create a suitable administrative system to govern a.II kinds of canteen workers using a reasonable basis for classification. Indeed the distinguishing feature adopted by the Railways in the above referred case is primarily the one provided by the Factories Act and the Rules. The relevant fact has been duly recognized by this Court in the aforesaid case without in any way watering down the importance of a statutory canteen to be provided to the employees/ workmen by the occupier of a factory. The learned single Judge and Division Bench have unjustly refused the claim of the canteen workmen by accepting the untenable arguments advanced by the learned senior counsel on behalf of the Air India that the canteen run through HCI from Chefair is not the statutory canteen and Air India is not the principal employer. This conclusion is not only erroneous but is also contrary to the law laid down by this Court in the cases referred H

BALWANT RAI SALUJA Ii. AIR INDIA LTD. & ORS. 767 [V. GOPALA GOWDA, J.] to supra which are binding upon it. A

29Copy pinpoint29. The presence of a statutory obligation on the part of Air India to run a canteen must always be seen as one more strong circumstance for me to determine the wider question of regularization of the concerned workmen involved in this case. 8 In Indian Petrochemicals Corpn.'s case, referred to supra we noticed the facts of that case which are quite ·similar to the case in hand. This Court was greatly influenced in oeterminative way of the finding of fact and. recorded that the workers were in continuous employment in the canteen for a considerable length of time. The underlying test is what is the nature of employment of the concerned workmen in the case in hand? Is it a temporary or casual vacancy or is it perennial and permanent in nature? The answer to the aforesaid queries by me is that in all statutory -canteens, the nature of employment, of vacancies, is indeed of a permanent nature and those who deploy the workmen on contract basis to discharge statutory duties of an employer amounts to unfair labour practice. In the nature of rotational hire and fire, policy adopted by the employer must not be rewarded for the illegalities perpetuated by them. This is more so when the principal employer is a statutory corporation coupled with the fact that the contractor also is one such entity and the two should not be allowed to con.tinue their unfair labour practices to employ the workmen on contract basis in the canteen to discharge the statutory duty by the occupier to provide and maintain a statutory canteen for its employees/ f7 workmen in its factory. Both Air India and HCI have colluded with each other to perpetuate unfair labour practices by engaging the concerned workmen in the statutory canteen of the principal employer- Air India. G

30Copy pinpoint30. Another important angle is examined by me in relation to the nature of test to be used to determine employment relations between the parties. Classically jurists like Salmond and others while developing the jurisprudence relating to Torts have laid down the test to determine the relationships between H

768 SUPREME COURT REPORTS [2013] 16 S.C.R.

A 'master and servant'. In such situations the predominant test deployed was the test of control and supervision. It is needless to state that post constitutional jurisprudence in India must no longer be allowing practice of the traditional master and servant relationship but should be facilitating employer-employee relationships mediated by constitutional jurisprudence which is relevant to the area of labour law jurisprudence in our country in the interest of maintaining industrial peace and harmony which is in larger public interest.

31Copy pinpoint31. Further there has been considerable discussion in the area of determining the relevant test relating to the jurisprudence of employer-employee relationship. Sometimes, we have fallen back on the old principles of master and servant and quite often when we find that these were not capable of delivering justice to the workers keeping with the principles contained in our Directive Principles of State Policy as . enshrined in Part IV of the Constitution, this Court has taken note of this difficult situation and has devised new tests to meet the challenges of the new times.

32Copy pinpoint32. That is why the legal principle has been enunciated by this Court right from the Hussainbhai Calicut, M.M.R. Khan, Parima/ Chandra Raha to Harjinder Singh v. Punjab State Warehousing Corporation 16 establishing the trend of healthy constitutional jurisprudence and its application to labour law keeping in mind the basic feature of the constitution namely to render social justice to the weaker sections of the society as has been held by this Court in Kesvananda Bharati v. State of Kerala 19 . The concept of social justice has been vividly explained in the case of Harjinder Singh, the relevant paragraph of which is extracted hereunder:

"30. Of late, there has been a visible shift in the courts' approach in dealing with the cases involving the 1a. (2010)3 sec 192

H 19. (1973)4 SCC2 25

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 769 [V. GOPALA GOWDA, J.] interpretation of social welfare legislations. The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etre of the judicial process and an impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganised workers. In large number of cases like the present one, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by. creating by-lanes and side- lanes in the jurisprudence developed by this Court in three decades. The stock plea raised by the public employer in c such cases is that the initial employment/engagement of the workman/employee was contrary to sonie or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea 0 unmindful of the accountability of the wrong doer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood." E

33Copy pinpoint33. Courts in this country have been faced with the problem to resolve the dilemma as to who is really independent contractor and who is not? In the light of the Constitution Bench decision in Steel Authority of India's case (supra) on the subject, the crucial test is to determine whether the nature of the contractual relationship between the parties that is juristically introduced is a genuine one or a sham contract. It must be noted that employers and their organizations and indeed all parties to labour litigation keep close watch on the evolving jurisprudence and tailor iegal agreement and paper contracts accordingly to suit the purpose of finding the cheapest and most exploitable labour with honourable exceptions as we have seen · in the case of the railway management. This craze for facilitating 'flexible labour' which is another phrase for 'hire and fire' deserves no constitutional sympathy. H

770 SUPREME COURT REPORTS [2013] 16 S.C.R.

34Copy pinpoint34. Two broad judicial approaches have manifested themselves in the above background - one that responds to constitutional jurisprudence, as pointed out in Harjinder Singh's case (supra) and the other that abides by the new dogmas of globalisation and liberalisation. It is my considered view that I must abide by the former jurisprudence keeping in view the mandate we find in the judgments of this Court referred to supra.

35Copy pinpoint35. The test which I come across is almost universal in its application to address the wide range of fact situations which has been discussed by me in this judgment. In the case of Hussainbhai (supra), this Court has held that the test of economic control in contrast to the test of control and supervision is the test to ascertain the employer-employee relationship. I am inclined to apply the above test to the fact situation of the case in hand to determine the fact as to whether a genuine contract or a sham contract exists between Air India and the Hotel Corporation of India. Indeed if I pierce the veil of legal appearances that is contained in the contractual a~rangement between the two public sector corporations named above, I must come to the conclusion that what I see is a sham contract between them behind which many unfair labour practices like the 40 days contract of employment of the concerned workmen in the canteen has been perpetuated by them in order to deny permanent employment to the workmen in the canteen which is of permanent and statutory in nature and therefore carries with it permanent vacancies.

36Copy pinpoint36. The learned senior counsel on behalf of Air lnclia, placing reliance upon the decision of this Court referred to supra urged that the concerned workmen in the canteen are 'workmen' only for the purpose of Factories Act. I disagree with the said contention and the view point for the reason that the same workers are also 'workers' as defined under Section 2(s) of the l.D. Act and permanently keeping them on a temporary status is against entries at serial numbers 5 and 10 of the Vth H Schedule of the l.D. Act pertains to "Unfair Labour Practices"

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 771 [V. GOPALA GOWDA, J.] under the l.D. Act which prohibits employers from committing A such illegalities, for which the statutory penal action is prescribed under Section 25U of the l.D. Act on such persons. The existing practice that is followed by either the Hotel Corporation of India or Air India independent of each other or in collusion thereof is unbecoming of a model employer. B Interestingly, this position would remain the same irrespective of whether the canteen worker is an employee of the 'independent contractor' or the 'priocipal employer'.

37Copy pinpoint37. Further question is whether the above two legal entities are independent of each other or not, has become central focus C to stay within the confines of the test of 'control and supervision'. I am prompted to find out whether the wholly owned subsidiary, the HCI is acting at the behest of Air India and if so to what extent. If, however, I have to apply the other tests already laid down by this Court as, I propose to do in this case in D Hussainbhai's case, then the independence of the separate legal personalities and the interpretation made in Salomon v. Salomon, on which the learned single judge relies, pales into insignificance. The relevant paragraph reads as under: E "Then, if the company was a real company, fulfilling all the requirements of the Legislature, it must be treated as a company, as an entity, consisting indeed of certain corporators, but a distinct and independent corporation. The Court of Appeal seem to treat the company sometimes as substantial and sometimes as shadowy and unreal: it must be one or the other, it cannot be both. A Court cannot impose conditions not imposed by the Legislature, and say that the shareholders must not be related to each other, or that they must hold more than one share each. There is nothing to prevent one shareholder or all the shareholders holding the shares in trust for some one person. What is prohibited is the entry of a trust on the register: s. 30 . If all the shares were held in trust that would not make the company a trustee." H

772 SUPREME COURT REPORTS [2013] 16 S.C.R.

38Copy pinpoint38. The said principle has been followed by this Court in catena of cases namely, Kanpur Suraksha karamchari Union and Basti Sugar Mills Ltd. referred to supra. In the case of State of UP v. Renusagar Power Co. (supra), this Court held as under: B '"55 ....... On the other hand these English cases have often pierced the veil to serve the real aim of the parties and for public purposes. See in this connection the observations of the Court of appeal in DHN Food Distributors Ltd. v. London Borough of Tower Hamlets. It c is not necessary to take into account the facts of that case. We may, however, note that in that case the corporate veil was lifted to confer benefit upon a group of companies under the provisions of the Land Compensation Act, 1961 of England. Lord Denning at p. 467 of the report has made certain interesting observations which are worth repeating in the context of the instant case. The Master of the Rolls said at p. 467 as follows:

'Third, lifting the corporate veil. A further very interesting point was raised by counsel for the claimants on company law. We all know that in many respects a group of companies are treated together for the purpose of general accounts, balance sheet and profit and loss account. They are treated as one concern. Professor Gower in his book on company law says: 'there is evidence of a general tendency to ignore the separate legal entities of various companies within a group, and to look instead at the economic entity of the whole group'. This is especially the case when a parent company owns all the shares of the subsidiaries, so much so that it can control every movement of the subsidiaries. These subsidiaries are bound hand and foot to the parent company and must do just what the parent company says. A striking instance is the decision of the House of Lords in Harold Holdsworth & Co. (Wakefield) Ltd. v. Caddies. So here. This group is H

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 773 [V. GOPALA GOWDA, J.] virtually the same as a partnership in which all the three companies are partners. They should not be treated separately so as to be defeated on a technical point. They should not be deprived of the compensation which should justly be payable for disturbance. The three companies should, for present purposes, be treated as one, and the parent company, DHN, should be treated as that one. So that DHN are entitled to claim compensation accordingly. It was not necessary for them to go through a conveyancing device to get it. ..... '

xxx xxx xxx c xxx xxx xxx

65. Mr. Justice 0. Chinnappa Reddy speaking for this Court in L/C v. Escorts Ltd. had emphasised that the corporate veil should be lifted where the associated companies are inextricably connected as to be, in reality, part of one concern. It is neither necessary nor desirable to enumerate the classes of cases where lifting the veil is permissible, since that must necessarily depend on the relevant statutory or other provisions, the object sought to be achieved, the impugned conduct, the involvement of the element of the public interest, the effect on parties who may be affected. After referring to several English and Indian cases, this Court observed that ever since A F Salomon & Co. Ltd. case a company has a legal independent existence distinct from individual members. It has since been held that the corporate veil may be lifted and corporate personality may be looked in. Reference wa~ made to Pennington and Palmer's Company Laws. G

66. It is high time to reiterate that in the expanding horizon of modern jurisprudence, lifting of corporate veil is permissible. Its frontiers are unlimited. It must, however, depend primarily on the realities of the situation. The ~im of the legislation is to do justice to all the parties. The H

774 Sl,JPREME COURT REPORTS [2013) 16 S.C.R.

A horizon of the doctrine of lifting of corporate veH is expanding. Here, indubitably, we are of the opinion that it is correct that Renusagar was brought into existence by Hindalco in order to fulfil the condition of industrial licence of Hindalco through production of aluminium. It is also B manifest from the facts that the model of the setting up of power station through the agency of Renusagar was adopted by Hindalco to avoid complications in case of take over of the power station by the State or the Electricity Board. As the facts make it abundantly clear that all the c steps for establishing and expanding the power station were taken by Hindalco, Renusagar is wholly owned subsidiary of Hindalco and is completely controlled by Hindalco. Even the day-to-day affairs of Renusagar are controlled by Hindalco. Renusagar has at no point of time indicated any independent volition. Whenever felt nei;:essarv. the State or the Board have themselves lifted the corporate veil and have treated Renusagar and Hindalco as one concern and the generation in Renusagar as the own source of generation of Hindalco. In the impugned order the profits of Renusagar have been treated as the profits of Hindalco.

xxx xxx xxx

68. The veil on corporate personality even though not lifted sometimes, is becoming more and more transparent in modern company jurisprudence. The ghost of Salomon case still visits frequently the hounds of Company Law but the veil has been pierced in many cases. Some of these have been noted by Justice P.B. Mukharji in the New Jurisprudence." G (Emphasis laid by the Court)

39Copy pinpoint39. The above said judgment is followed by this Court in D.D.A. v. Skipper Construction Co.(supra). The relevant paragraphs read as under:

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 775 [V. GOPALA GOWDA, J.) 1,;i/

"2s1'. The law as stated by Palmer and Gower has been approved by this Court in TELCO v. State of Bihar. The following passage from the decision is apposite:

' ... Gower has classified seven categories of cases where the veil of a corporate body has been lifted. B But, it would not be possible to evolve a rational, consistent and inflexible principle which can be invoked in determining the question as to whether the yeil of the corporation should be lifted or not. Broadly stated, where fraud is intended to be prevented, or trading with an enemy is sought to be C defeated, the veil of a corporation is lifted by judicial decisions and the shareholders are held to be the persons who actually work for the corporation.'

27. In DHN Food Distributors Ltd. v. London Borough of D Tower Hamlets the court of appeal dealt with a group of companies. Lord Denning quoted with approval the statement in Gower's Company Law that

"there is evidence of a general tendency to ignore the separate legal entities of various companies within a group, and to look instead at the economic entity of the whole group".

The learned Master of Rolls observed that "this group is virtually the same as a partnership in which all the three companies are partners". He called it a case of "three in one" - and, alternatively, as "one in three".

28...The concept of corporate entity was evolved to encourage and promote trade and commerce but not to commit illegalities"o·no-defraud people. Where. therefore. the corporate character is employed for the purpose of committing illegality or for defrauding others, the court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass H

776 SUPREME COURT REPORTS [2013] 16 S.C.R.

A appropriate orders to do justice between the parties concerned. The fact that Tejwant Singh and members of his family have created several corporate bodies does not prevent this Court from treating all of them as one entity belonging to and controlled by Tejwant Singh and family if B it is found that these corporate bodies are merely cloaks behind which lurks Tejwant Singh and/or members of his family and that the device of incorporation was really a ploy adopted for committing illegalities and/or to defraud people. c The concept of resulting trust and equity"

(Emphasis laid by the Court)

40Copy pinpoint40. In Kapila Hingorani v. State of Bihar (supra), this Court D held as under: "26. The proposition that a company although may have only one shareholder will be a distinct juristic person as adumbrated in Salomon v. Salomon and Co., has time and again been visited by the application of doctrine of lifting the corporate veil in revenue and taxation matters. (See Dal Chand and Sons v. CIT and Juggilal Kamlapat v. CIT.)

27. The corporate veil indisputably can be pierced when the corporate personality is found to be opposed to justice. convenience and interest of the revenue or workman or against public interest. (See CIT v. Sri Meenakshi Mills Ltd., Workmen v. Associated Rubber Industry Ltd., New Horizons Ltd. v. Unifm of India, State of UP. v. Renusagar G Power Co., Hussainbhai v. Ala th Factory Thezhilali Union and Secy., H.S.E.B. v. Suresh.)"

(Emphasis laid by the Court)

41Copy pinpoint41. This Court in Secretary, HSEB v. Suresh & Ors2°. has

H 20. (1999) 3 sec ao1.

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 777 [V. GOPALA GOWDA, J.] held as under: A

"6. In order to keep the said plants and stations ylean and hygienic, the appellant-Board, upon tenders being floated, awards contracts to contractors who undertake the work of keeping the same clean and hygienic. One such co11tract B was awarded to one Kashmir Singh, for "proper; complete and hygienic cleaning, sweeping and removal of garbage from the Main Plant Building" at Panipat, at the rate of Rs 33,000 per month with a stipulation to engage minimum 42 Safai Karamcharis with effect from 15-5-1987 for a C period of one year and in terms therewith the contractor took over the work and performed the said work through the above-stated Safai Karamcharis.

xxx xxx xxx D

9. The High Court did in fact note with care and caution the doctrine of "lifting of the veil" in industrial jurisprudence and recorded that in the contextual facts and upon lifting of the veil. question of having any contra opinion as regards the exact relationship between the contesting parties would not arise and as such directed reinstatement though, however, without any back wages. While it is true that the doctrine enunciated in Saloman v. Sa/oman & Co. Ltd. came to be recognised in the corporate jurisprudence but its applicability in the present context cannot be doubted. since the law court invariably has to rise up to the occasion to do justice between the parties in a manner · as it deems fit. Roscoe Pound stated that the greatest virtue of the law court is flexibility and as and when the situation so demands. the law court ought to administer justice in accordance therewith and as per the need of the situation.

xxx xxx xxx

13. There is, however, a total unanimity of judicial H

778 SUPREME COURT REPORTS [2013] 16 S.C.R.

A pronouncements to the effect that in the event the contract labour is employed in an establishment for seasonal workings. question of abolition would not arise but in the event of the same being perennial in nature, that is to say, iri the event of the engagement of labour force through an B intermediary which is otherwise in the ordinary course of events and involves continuity in the work. the legislature is candid enough to record its abolition since involvement of the contractor may have its social evil of labour exploitation and thus the contractor ought to go out of the c scene bringing together the principal employer and the contract labourers rendering the employment as direct, and resultantly a direct employee. This aspect of the matter has been dealt with great lucidity, by one of us (Majmudar. J.) in Air India Statutorv Comn. v. United Labour Union. D xxx xxx xxx

17. Needless to note at this juncture that the Contract Labour (Regulation and Abolition) Act being a beneficial piece of legislation as engrafted in the statute-book, ought to receive the widest possible interpretation in regard to the words used and unless words are taken to their maximum amplitude, it would be a violent injustice to the framers of the law. As a matter of fact the law is well settled by this Court and we need not dilate much by reason therefor to the effect that the law courts exist for the society and in the event of there being a question posed in the matter of interpretation of a beneficial piece of legislation. Question of interpreting the same with a narrow pedantic approach would not be justified. On the contrary, the widest possible meaning and amplitude ought to be offered to the expressions used as otherwise the entire legislation would lose its efficacy and contract labour would be left at the mercy of the intermediary.

xxx xxx xxx H

BALWANT RAJ SALUJA v. AIR INDIA LTD. & ORS. 779 [V. GOPALA GOWDA, J.]

20. It has to be kept in view that this is not a case in which A it is found that there was any genuine contract labour system prevailing with the Board. If it was a genuine contract system, then obviously it had to be abolished as per Section 10 of the Contract Labour Regulation and Abolition Act after following the procedure laid down therein. B However, on the facts of the present case, it was found by the Labour Court and as confirmed by the High Court that the so-called contractor Kashmir Singh was a mere name lender and had procured labour for the Board from the open market. He was almost a broker or an agent of the Board c for that purpose. The Labour Court also noted that the management witness Shri A.K. Chaudharv also could not tell whether Shri Kashmir Singh was a licensed contractor or not. That workman had made a statement that Shri Kashmir Singh was not a licensed· contractor. Under these circumstances, it has to be held that factually there was no genuine contract system prevailing at the relevant time wherein the Board could have acted as only the principal employer and Kashmir Singh as a licensed contractor employing labour on his own account. It is also pertinent to note that nothing was brought on record to indicate that even the Board at the relevant time was registered as the principal employer under the Contract Labour Regulation and Abolition Act. Once the Board was not a principal employer and the so-called contractor Kashmir Singh was not a licensed contractor under the Act. the inevitable conclusion that had to be reached was to the effect that the so-called contract system was a mere camouflage, smoke and a screen and disguised in almost a transparent veil which could easily be pierced and the real . contractual relationship between the Board, on the one G' hand, and the employees, on the other, could be clearly visualised."

(Emphasis laid by the Court)

42Copy pinpoint42. The legal principle laid down by this Court by following H

780 SUPREME COURT REPORTS [2013] 16 S.C.R.

A the exposition of law for lifting the veil to find out real facts is very much necessary to the facts of the case in hand having the law laid down in the case of Salomon v. Salomon (supra) to examine the correctness of the findings of the High Court in reversing the finding of fact B recorded in favour of the concerned workmen by the CGIT in its award with a view to find out whether the arrangement with or without the consent of the owner company facilitated the violation of the basic principles of labour jurisprudence established in this country over a c period of more than six decades, especially principles relating to security of tenure, retrenchment, natural justice, and many other standards relating to "decent conditions at work". If two statutory corporations owned by the Government of India are governed by Rule of law, namely Factories Act and Industrial Disputes Act, in the manner in which they contended, it would be opposed to the labour jurisprudence and constitute a clear case of unfair labour practice which is against the law enunciated by this Court in plethora of cases referred to supra whose relevant paragraphs are extracted as above in support of my conclusion to hold that the finding in the impugned judgments of the High Court that is, the HCI, though it is a subsidiary company of Air India, yet it is a separate and distinct legal entity and that the concerned workmen have been employed by the HCI and not Air India and hence, there is no relationship of employer and employee and disciplinary control upon them by Air India, which has been reached at by the High Court and setting aside the findings recorded by the CGIT in favour of the concerned workmen, is not only erroneous but also suffers from error in law as the same is opposed to the law laid down by this Court in catena of cases referred to supra.

43Copy pinpoint43. Any other test required to be applied to the question of the legal entity of the so called 'independent contractor', is irrelevant to the critical issues which arise in this case. The view

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 781 [V. GOPALA GOWDA, J.] taken by the Delhi High Court regarding the separate legal identity of both these corporations, and erroneously setting aside the findings of the CGIT is not the determining factor in this case. There have been varying practices in vogue in this regard. In the Parimal Chandra Raha's case (supra), it is noticed that there were 'Managing Committees', and B 'Cooperative Societies' which could not exist without a separate legal personality that is, 'Contractors', many of them also create convenient legal personalities under garb of different legal entities. The presence of a contractor clothed with a legal personality or not as in the case of the defence establishments c referred to above in the Suraksha Karamchari Union's case (supra) also has hardly ever been considered to be a determinative test pertaining to canteen workers on contract.

44Copy pinpoint44. For the reasons recorded by me on the contentious points with reference to the facts, legal evidence and law laid down by this Court in plethora of cases, I am in agreement with the CGIT on the finding of facts recorded by it on the question of the relationship between the concerned workmen and the Air India on proper appreciation of pleadings and the legal evidence on record and piercing the veil to the fact situation to find out true facts which is rightly answered by CGIT on the points of disputes and the said finding is in conformity with the law laid down by this Court in Hussainbhai' case and M.M.R. Khan and other cases referred to supra for the reason that the contract with the HCI which is a subsidiary Company of Air India F and employing the contract workers to work in the statutory canteen, is a sham contract. They have been engaged in permanent nature of work continuously for number of years. The finding of fact recorded by the CGIT on the points of dispute holding that they are entitled for regularization and to be G absorbed as employees of Air India, without prejudice to any managerial arrangement to avail the expertise of the HCI of India through existing arrangements. Indeed that would be a win- win situation for all the stake holders concerned in this case- the corporates, the Air India employees numbering more than H

782 SUPREME COURT REPORTS (2013] 16 S.C.R.

A 2000 in this case and the disempowered canteen workers and that would also be in harmony with our constitutional jurisprudence.

45Copy pinpoint45. However it must be clarified that the requirement of reservation as provided for in Articles 14 and 16 of the 8 Constitution must be complied with while regularizing the canteen workers as employees of Air India. This can be achieved by complying with relevant provisions of the l.D. Act in contrast to the action taken by the HCI in violation of the said C statute. It is alsci further relevant to note that the only relief the workers have sought is one of regularization on the rolls of Air India. This does not itself impose any additional expenditure for it. Therefore, the concern of the learned single Judge of the High Court, on this count is not attracted in the context of the relief sought for by the concerned workmen. D

46Copy pinpoint46. The special facts which are intermingled with questions of fact relevant to the case at hand may once again be noticed by me to hold that the concerned workmen have completed 240 days despite attempt of the contractor by giving break in service of the concerned workmen by the statutory corporation which is an instrumentality of the state which is not permissible in law.

47Copy pinpoint47. The wages of the canteen workers and other costs are paid through the arrangement of per head subsidy @ of Rs.340/ - for over 2000 employees, to the contractor that is, HCI by the principal employer -Air India. The supervision and control of the establishment is adequately provided for through the 'Memorandum and Articles of Association' which binds both the 'sole owner' and the 'wholly owned subsidiary'. The service of running the statutory canteen is provided for the benefit of the employees of Air India. The statutory obligation on the part of Air India to run the canteen is squarely placed on the shoulders of the occupier of the factory as per Section 2(n) of the Factories Act, because they employ more than 2000 employees despite resorting to pleadings stating that it did not employ more than 250 workers, thus seeking to escape from

BALWANT RAI SALUJA v. AIR INDIA LTD. & ORS. 783 [V. GOPALA GOWDA, J.) the consequences that may follow in case of a 'statutory canteen' without challenging the Notification of the Labour Department issued by the Lt. Governor of Delhi under Rules 65 to 70 of the Rules.

48Copy pinpoint48. For the above reasons, in addition to the test of 8 economic control, as held by this Court in Hussainbhai's case, I am of the view that the relief sought for by the concerned workmen which is accepted by the CGIT is legal and valid. Therefore, I have to accept the finding· and reasons recorded by the CGIT though the reasons which I have assigned are not the reasons assigned by it but the conclusions arrived at by the C CGIT while determining the points of dispute referred to it are legal and valid. Therefore, the reasons assigned by me in this judgment must be read into the reasons of the award of the CGIT. The aforesaid reasons are assigned by me in this judgment after careful examination of the rival 1legal contentions D urged by the learned senior counsel on behalf of the parties with reference to the provisions of the Factories Act, Rules, Contract Labour Act and Industrial Disputes Act and law laid down by this Court in catena of cases. These points are accordingly answered in favour of the workmen. E·

Answer to point No. 3:

49Copy pinpoint49. In view of the foregoing reasons recorded by me in answering the point Nos. 1 and 2 after adverting to the relevant facts and interpretation of certain provisions of the Factories F Act, Rules and the Industrial Disputes Act, particularly Sections 2(k), 2(s) read with the provisions of Section 25(T) and Section 25(U) of the Industrial Disputes Act and Entry No.10 in the Vth Schedule under the definition of unfair labour practices as defined in Section 2(ra) regarding the employment of the G workmen on contract basis against the permanent nature of employment in the statutory canteen I have held that this practice by Air India constitutes unfair labour practice. The decisions rendered by this Court which have been extensi\1ely referred to by me and some of the cases referred to by the CGIT · H

784 SUPREME COURT REPORTS [2013] 16 S.C.R.

A have rightly answered the points of dispute in favour of the concerned workmen, on proper appreciation of the facts pleaded, legal evidence on record and I have applied the legal principles laid down by this Court in the cases of Basti Sugar Mills Ltd., Parimal Chandra Raha, Kanpur Suraksha B Karamchari Union and M.M.R. Khan (all referred to supra) to the fact situation of the case on hand to restore the award of the CGIT. The CGIT has rightly come to the conclusion and recorded the finding of fact assigning valid and cogent reasons. Therefore, I have to answer that the findings and reasons C recorded by CGIT on the points of dispute in relation to the concerned employees declaring that the concerned contract workers of the canteen are deemed employees of Air India is a right decision which has been reached after appreciation of evidence on record and adhering to the legal principles laid down by this Court in catena of cases. Further, setting aside 0 the termination orders passed against some of the concerned workmen covered in the industrial dispute case Nos.97 to 99 of 1996 is also justified for the reason that the services of the concerned workmen in the above cases were terminated during pendency of the industrial disputes before CGIT E regarding absorption of the concerned workmen as permanent employees, without obtaining approval from the CGIT as required under Section 33(2)(b) of the l.D. Act. Apart from the above reason, the termination of services of the workmen involved in the above industrial dispute cases is unsustainable in law for the reason that they have not complied with the mandatory provisions of Section 25F, clauses (a) and (b) of the LD. Act and have not obtained the permission from the Central Government as required under Section 25N of Chapter VB of the l.D. Act. Therefore, the orders of termination passed against the concerned workmen are void ab initio in law and the same are liable to be set aside. I have to hold that the CGIT has rightly passed an award in favour of all the workmen in all the Industrial Disputes on the file of CGIT on findings and reasons recorded on the points of dispute referred to it by the Central Government H upon which adjudication is made by the CGIT. The same cannot

BALWANT RAI SALUJA v. AIR INDIA LTD'. & ORS. 785 [V. GOPALA GOWDA, J.] be termed either as erroneous or error in law. Accordingly, I A answer the point No.3 in favour the concerned workmen. Answer to point No.4:

50Copy pinpoint50. The findings and reasons recorded on the contentious points by both the learned single Judge and the Division Bench B of the Delhi High Court in the impugned judgment that no better service conditions than the Management of HCI would be provided to the canteen workers except to get free air tickets which apparently some employees of Air India are entitled to, is untenable in law. Incidentally this is another aspect which may C have a bearing on the question of viability in terms of prevailing practice in industry. Perhaps, Air India must explore the significance of the region cum industry principle so well developed in our labour jurisprudence. It is seriously concerned about competition and viability rather than focus on the handful of canteen workers. D

51Copy pinpoint51. The learned single Judge and the Division Bench have interfered with the finding of fact recorded in the common award passed by the CGIT by disagreeing with the findings and reasons recorded by the CGIT and holding that the HCI is a E subsidiary corporation of Air India and it has got 100% share holding and power to appoint the Directors of the HCI and after referring to the decisions of this Court in Kanpur Suraksha Karamchari Union case (supra), it held that it is a separate legal entity which finding of fact and reason has been concurred with by the Division Bench by assigning the similar reasons F placing reliance on the decision of this Court in M.M.R. Khan's case which decision supports the case of the concerned workmen. The said decision is distinguished by the Division Bench of the High Court after adverting to certain paragraphs without considering the relevant paragraph Nos. 25 and 30 G which has laid down the legal principle and also referred to other judgments namely Indian Petrochemicals Corporation Ltd. and Hari Shanker Sharma referred to supra without piercing the veil to the real facts of the case. H

786 SUPREME COURT REPORTS [2013) 16 S.C.R.

52Copy pinpoint52. Both the learned single Judge and the Division Bench have exceeded in their jurisdiction in exercising their extraordinary and supervisory jurisdiction in the Writ Petitions and the Letter Patent Appeals, while examining the correctness and findings recorded by the CGIT in the common award which B the High Court has disagreed with and has set aside the common award impugned in the Writ Petitions filed by Air India. Both the learned single Judge and the Division Bench have exceeded their jurisdiction in interfering with findings of fact recorded by the CGIT on the points of dispute and the c contentious issues on proper appreciation of pleadings, evidence on record and law laid down by this Court in the cases referred to, in the award I have referred to the relevant factual aspects and legal evidence and the statutory provisions of the Factories Act, Rules and the Industrial Disputes Act, while answering to Point Nos ..1, 2 and 3 in favour of the concerned workmen by recording my reasons in this judgment. Therefore, I have to hold that the learned single Judge and the Division Bench exceeded in their jurisdiction to interfere with the finding of fact recorded by the CGIT on the points of dispute which were referred to by the Central Government. For the reasons recorded by me on point Nos. 1 and 2 in this judgment and further answering the point No.3 in affirmative in favour of the concerned workmen holding that findings and reasons recorded by the CGIT on the point of dispute referred to it by the Central government are neither erroneous nor suffers from error in law. F Also I have to hold while answering to point No. 4 that both the learned single Judge and the High Court have disagreed with the correct finding of fact recorded by the CGIT in its award. The findings recorded by the learned Singh Judge and Division Bench in the impugned judgment are not only erroneous but suffers from error in law as the same is contrary to the statutory provisions and law laid down by this Court which have been extensively referred to by me in the reasoning portion of this judgment in answer to point Nos. 1 and 2. Hence, I have to hold that findings and reasons recorded in the impugned judgment is wholly untenable and liable to be set aside and accordingly

BALWANT RAI SALUJA v. AfR INDIA LTD. & ORS. 787

set aside by answering point no. 4 in affirmative in favour of the concerned workmen. Answer to Point No.5:

53Copy pinpoint53. Since I have answered point No. 4 in favour of the concerned workmen and against Air India, the appellants are entitled for the reliefs as prayed for in these appeals. Accordingly, these appeals are allowed and common award dated 5.5.2004 passed in l.D. Nos.97 to 99 of 1996 in favour of the workmen is restored. Further, I direct the Management of Air India to absorb all the concerned workmen covered in the l.D. Nos.97 to 99 of 1996 as permanent workmen on its c rolls from the· date of their appointment and grant all the consequential benefits such as salary for which they are entitled for after computing properly, taking into consideration the pay scale and periodical wage revision that has taken place and arc applicable to the respective posts of the concerned D workmen as per the notification issued by the Lt.· Governor, Union Territory of Delhi and on the basis of similar notifications applicable for them.

54Copy pinpoint54. Since I have allowed l.D. Nos. 97 to 99 of 1996, the E Industrial Dispute case Nos. 107 and 108 of 1996 involving the wdrkmen whose services were terminated during the pendency of petition before CGIT, must also be treated as permanent workmen at par with the concerned workmen involved in the ::; instant case. The award for their reinstatement to their posts shall be passed with all consequential benefits with full back F wages.

55Copy pinpoint55. Accordingly, I allow the appeals of the concerned workmen in the above said terms. ORDER G

As we have differed in our opinion, let the record of these ·appeals be placed before Hon'ble The Chief Justice of India for placing the matters before an appropriate Bench. Bibhuti Bhushan Bose. Matter referred to Appropriate Bench. H