SUVRA GHOSH, J. :-

1. The petitioners have assailed the award of the Central Government Industrial Tribunal at Kolkata passed on 19th December, 2019.

2. Respondent nos. 3 to 15 who are employees under Kolkata Port Trust Officers’ Club, Haldia, being the 16th respondent herein, applied before the Assistant Labour Commissioner (Central), Kolkata for regularisation of their service under the Haldia Dock Complex, (hereinafter referred to as HDC), Kolkata Port Trust (in short the KoPT). Upon failure of conciliation, the matter was referred to the Industrial Tribunal which decided the issue in favour of respondent nos. 3 to 15 by the award impugned.

3. It is contended on behalf of the petitioners that the KoPT Officers’ Club (hereinafter referred to as the Club) was set up in 1987 and has its own existence and structure as shall be evident from the Constitution of the Club. The members of the Club consist of the officers of the KoPT including retired officers as well as other officers of the State/Central Government or private/public sector undertaking in Haldia who are called associate members and membership of the Club is not co-terminus with employment with KoPT. The Club generates its funds through several activities including subscription of members and also receives grant from the KoPT. The employees including the 13 respondents are recruited by the Club and are under administrative control of the Club. The Club administers administrative as well as financial control over the employees and cannot be linked with the activities of the KoPT, moreso, since the membership of the Club is not restricted to the employees of the KoPT only.

4. Per contra, the KoPT is governed by its regulations of 1985 which include Central Government rules for regular appointments. Such appointments are made in terms of the regulation by promotion, transfer of employees or direct recruitment.

5. Learned counsel has taken this Court to paragraph 9 of the award which enumerates guidelines for determination of the question of relationship of employer and employee as dealt with by the Hon’ble Supreme Court in Balwant Rai Saluja and Another v/s. AIR India Limited and Others reported in (2013) 15 Supreme Court Cases 85 [LQ/SC/2013/1259] . The guidelines are hereunder:-

i. Who appoints the workers

ii. Who pays the salary/remuneration

iii. Who has the authority to dismiss

iv. Who can take disciplinary action

v. Whether there is continuity of service vi. Extent of control and supervision and whether there exists complete control and supervision

6. The appointment letters were issued in favour of the respondents by the Club and the notice of employment inviting applications for temporary vacancies for the guest house was also issued by the Club. Therefore it is the Club and not the KoPT who appoints the workers/employees. The bank statement of the Club indicates that remuneration of the employees/respondents is disbursed by the Club. With regard to the authority to initiate the disciplinary action against the employees the appointing authority being the Club has such entitlement.

7. The guest house is admittedly under supervision and control of the KoPT and not the Club. It appears from the note sheet of the KoPT that for the management of the guest house employment is made by the Club in consultation with the Finance Division. HDC management provides additional grant to the Club to meet the additional financial burden. HDC management does not take responsibility of recruitment. The Deputy Chairman of the KoPT being the President of the Officers’ Club takes decision in regard to the Club. The KoPT only sets up a standard for appointment by the Club and has no direct control over the same. It can at best be said that the KoPT has secondary control over the Club.

8. In the award impugned the Tribunal has recorded that the Deputy Chairman of the HDC has not only approved the creation and filling of posts but also promotions of Club employees. But the office order of the CPT Officers’ Club dated 13th March, 2001 indicates that a Club Assistant was proposed to be promoted to the post of Senior Club Assistant by the Club on approval of the Deputy Chairman who is also the President of the Club. The employees are governed by the rules, regulations, by laws orders, notifications and resolutions of the Club as appears from the appointment letters.

9. With regard to financial control, the KoPT sanctions grant/additional grant to the Club to meet the salary requirement of the employees of the Club and other expenses under corporate social responsibility and has no financial control over the Club. Resolution regarding uniform of the employees is also taken by the Club subject to approval of the KoPT.

10. The KoPT had no statutory obligation to start the Club and it was established only for recreational purposes. The fact that the Club is not a registered entity does not ipsofacto bring it under control and management of the KoPT. The management of the Club is controlled and governed by the Club itself and the Deputy Chairman of the KoPT grants approval in some cases in the capacity of the President of the Club. Though there may be overlapping decisions taken by the KoPT and the Club, that does not create an employer-employee relationship between the two concerns. The KoPT has no direct control over the Club and it can at best be said to have supervisory control.

11. Distinguishing the judgments referred to by the employee/respondents, learned counsel has submitted that the judgments deal with workers of statutory canteen and have no manner of application in the present case. Learned counsel has placed reliance on the authorities in Balwant Rai Saluja and Another v/s. AIR India Limited and Others reported in (2013) 15 Supreme Court Cases 85 [LQ/SC/2013/1259] and (2014) 9 Supreme Court Cases 407 [LQ/SC/2014/853] in support of his contention.

12. Learned counsel for the 16th respondent which is the Kolkata Port Trust Officers’ Club, Haldia has taken this Court to the appointment letters issued by the Club and submitted that appointment to various posts of the Club is offered by the Club itself which is independent of the Port Trust. The Club is run and managed by its managing committee/executive committee and is governed by its own by laws. Membership of the Club is not restricted to the petitioners and is open to other Government, public sector and private organisations. The administration and function of the Club are independent of the KoPT. Financial control of the Club is exercised by the Club. For example, the Club sanctions and grants loan to employees on their application. Disciplinary action is also taken by the Club against erring employees, thereby indicating that the Club has administrative control over its employees. In the reference made before the Industrial Tribunal, the respondents/employees have been wrongly referred to as employees of the guest house and there is no whisper about the Club therein. Therefore the very basis on which the award was granted is erroneous.

13. In addition to the submission made by him, learned counsel has adopted the submission made on behalf of the petitioners.

14. Raising vehement objection to the contention of the petitioners and the 16th respondent, learned counsel for the respondent nos. 3 to 15, i.e., the employees, has canvassed his argument as hereunder:-

15. The Club is admittedly not registered and therefore has no legal entity. It is not in dispute that the Club is situated on the land of the KoPT.

16. The workmen filed a writ petition before this Court earlier, being W.P. No. 15511 (W) of 1997 for absorption of their service by the petitioners and the Hon’ble Court, by orders passed on 4th November, 1997 and 11th November, 1997 gave direction for absorption of the employees within a stipulated time frame. The matter was dealt with by the General Manager instead of the Deputy Chairman of the KoPT who rejected the representations of the workmen against which the workmen filed another writ petition and a contempt application and the matter was relegated to the Industrial Tribunal.

17. The note sheet of the KoPT Administrative Department demonstrates that furniture of the guest house and appointment of employees therein were provided by the KoPT and additional grant was given to the Club to meet the financial burden of appointment of employees by the Club. The documents reveal that the Club is not an independent identity and acts on behalf of the principal, being the HDC. The signatories of all the documents relating to the Club are representatives of the HDC and not the Club. Administrative approval with regard to additional grant is accorded by the HDC, such approval being given in the capacity of the Deputy Chairman and not the ex-officio President of the Club. Issues like salary of the employees and uniform of the workers are approved by the KoPT and the audit report of the petitioners demonstrates that financial control of the Club lies with the KoPT. Creation and filling up of additional man power of the Club for running the guest house is approved by the Deputy Chairman of KoPT. The HDC has its say over every matter of the Club, however petty may be.

18. Learned counsel has drawn the attention of the Court to the inspection report on the accounts of the Manager (Administration), guest house, HDC for the period 4/2002, 3/2001 and submitted that the report says that accommodation charges calculated by the Club from the boarders from April, 1999 to October, 2000 was deposited by the Club to the HDC after a period of 19 months. Also, the charges to be borne by the KoPT and the Club separately could not be ascertained. Therefore the Club has no separate entity and is part of the KoPT. The application for regularization of the employees of the Club was made before the KoPT. The guest house staff wrote to the Deputy Chairman, HDC for regularisation of their service and submitted that the guest house staff of Mumbai, Chennai, Cochin, etc., have been treated as regular Port Trust employees. In reply to the said letter, the HDC has undertaken to abide by the order of the High Court.

19. Upon consideration of the evidence placed before the Tribunal, the Tribunal has passed a reasoned order. The evidence furnished before the Tribunal cannot be appreciated/re-appreciated by the Writ Court and factual aspects laid down therein cannot be reopened.

20. Learned counsel has distinguished the judgments relied upon by the petitioners and has submitted that they are not applicable in the facts of the present case. Learned counsel has relied upon the authorities in State of Karnataka and Another v/s. N. Gangaraj reported in AIR 2020 SC 1878 [LQ/SC/2020/246 ;] , Chennai Port Trust v/s. Chennai Port Trust Industrial Employees Canteen Workers Welfare Association and Others reported in AIR 2018 SC 2272 [LQ/SC/2018/612] , Parimal Chandra Raha and Others v/s. Life Insurance Corporation of India and Others reported in AIR 1995 SC 1666 [LQ/SC/1995/456] , judgments of Hon’ble Division Benches of this Court in F.M.A.T No. 2788 of 1995, F.M.A.T. 2000 of 1989 and C.O. No. 12246 (W) of 1989 in support of his contention.

21. Heard learned counsels for the parties and considered the material on record.

22. Responding to a reference made by the Government of India, Ministry of Labour under section 10(1)(d) and 2A of the Industrial Disputes Act, 1947 to the Central Government Industrial Tribunal for adjudication whether the action of the management of Haldia Dock Complex (CPT) in not absorbing permanently the service of Shri S.N. Das, Ajay Kumar Mal and 11 others employed in Haldia Dock Complex CPT Guest House is justified and if not, to what relief the concerned 13 workmen are entitled, the Tribunal, by an award passed on 19th December, 2019, held that the Club is under control of the Haldia Dock Complex both financially and administratively and the workmen are employees of the HDC and are entitled to be treated as regular employees of the management of HDC.

23. Learned counsel for the respondents has placed reliance on the authority in the State of Karnataka and Another (supra) wherein the Hon’ble Supreme Court has observed that the power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Interference with the decision, while exercising jurisdiction under Article 226 of the Constitution, is permitted when there is violation of the principles of natural justice or statutory regulation or if the decision is vitiated by considerations extraneous to the evidence and merits of the case or if the conclusion arrived at by the authority is, on the very face of it, so wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion. Such observation of the Hon’ble Supreme Court is the guiding factor in dealing with the present case.

24. While dealing with the question of employer-employee relationship between the petitioners and respondent nos. 3 to 15, the Tribunal has relied upon certain parameters to be taken into consideration as declared by the Hon’ble Supreme Court in the authority in Balwant Rai Saluja and Another (supra) as hereunder:-

I. Who appoints the workers

II. Who pays the salary/remuneration

III. Who has the authority to dismiss

IV. Who can take disciplinary action

V. Whether there is continuity of service

VI. Extent of control and supervision and whether there exists complete control and supervision

25. It is not in dispute that the guest house is under direct and complete supervision and control of the HDC and the workers including the respondents have overlapping duties in the guest house as well as the Club. The guest house is constructed on the floor above the Club on land admittedly owned by the HDC. Each decision with regard to quality and norms of furniture and fittings, charges for occupation of the guest house, management of the guest house, appointment of personnel and booking accommodation are under control of the administrative office of the HDC which entrusted the Officers’ Club to employ personnel whose scale of pay would be fixed in consultation with P & IR and Finance Department and the additional burden of such employment would be borne by the HDC. The notices of appointment and appointment letters were accordingly issued by the Club as agents/representatives of the HDC. Approval of creation and filling up of additional posts of the Club for running the guest house was given by the Deputy Chairman of the CPT on behalf of the CPT and not in the capacity of the President of the Club. The appointment letters demonstrate that the appointments were initially temporary for a period of one year or such extended period as may be decided by the executive committee of the Club. Since the respondents are still in service, it can be inferred that they are in continuous service. The acceptance of the offer of employment made by the employees was explained to the employees by the administrative office of the HDC. Though the appointment letters indicate that the employees are bound by the rules, regulations, by-laws, orders, notifications and resolutions of the Club, the Club and the guest house are manned by employees who are similarly placed. Since the guest house is under control and supervision of the HDC, the obvious inference that can be drawn is that the employees of the guest house as well as the Club are under direct control and supervision of the HDC.

26. Administrative approval and permanent sanction in respect of additional grant to the Club for payment of monthly salary to the staff engaged by the Club for the guest house is granted by the HDC. Various bills submitted by the Club regarding uniform of the employees and other expenditure are placed for approval before the Deputy Chairman of HDC. The Club banks upon the HDC for fund and the Deputy Chairman of the HDC approves enhancement of various allowances of the employees and the rates of allowances are also fixed by the HDC. Expenditure of the Club towards remuneration of the staff is reimbursed by the HDC upon application made by the Club. Furniture, fixture, utensils, crockery, etc., are procured for the guest house admittedly by the HDC. Service of the Club/its employees is utilised in several programmes held at the HDC Officers’ Guest House and the Club is requested to make necessary arrangements accordingly. Accommodation charges collected by the Club from boarders are also deposited by the Club to HDC. Administrative control is exercised by the HDC over employees of the Club even in trivial matters like whereabout of a table cloth. Each approval given by the Deputy Chairman of HDC is on behalf of the HDC and not in the capacity of the President of the Club.

27. The audit query sent by the HDC to the Club demonstrates that every finanancial transaction of the Club is subject to administrative approval of the HDC and is subject to audit by the KoPT. The audit query says that the guest house of KoPT is run by the staff of the Club which maintains all the records of the guest house. The guest house in turn being controlled by the HDC, it can be held that both the guest house and the Club are controlled by the HDC.

28. Much has been spoken about the distinction between employees of statutory canteens and non-statutory canteens. The Hon’ble Supreme Court, in the authority in Parimal Chandra Raha (supra) has clarified that no distinction can be made between employees of statutory canteens and non-statutory canteens and workers engaged in both the canteens are railway employees and are entitled to be treated alike. The Hon’ble Court went on to hold that employees of non-statutory canteens under the railways should be treated as regular employees subject to two conditions:-

(a) That they were above the minimum and below the maximum age limit and medically fit as per the regulations of the Corporation on the date of the filing of the writ petition; and

(b) That on the date of the filing of the writ petition before the High Court and also during the pendency of the proceedings, they had put in a minimum of three years continuous service.

29. The authority in Balwant Rai Saluja (supra) speaks about supervisory control and complete administrative control in determining employeremployee relationship. The authority lays down two well recognised tests to determine such relationship which are:-

i. Whether the principal employer pays the salary instead of the contractor; and

ii. Whether the principal employer controls and supervises the work of the employee.

30. In the present case, the Tribunal has answered both the questions in the affirmative upon considering the material placed before it.

31. Similar factual issues were raised in the Indian Petro Chemical’s case (AIR 1999 SC 2577 [LQ/SC/1999/684 ;] ). In that case – (a) The workmen have been employed for long years and have continued to be employed, (b) The wages of the workers have to be reimbursed by the principal employer, (c) The premises, furniture, fixture, fuel, electricity, utensils, etc., have been provided for by the employer (d) The supervision and control is exercised by the employer, (e) The workmen have the protection of continuous employment in the establishment.

32. On the basis of above facts the Hon’ble Court arrived at the opinion that the workmen were the workmen of the management. The fact situation in the present case being similar to that of the Indian Petro Chemical’s case, there is no reason why the respondents herein should not be granted the same benefit as in that case and treated as employees under the HDC.

33. In the authority in National Aluminium Company Limited v/s. Ananta Kishore Rout reported in (2014) 6 Supreme Court Cases 756, [LQ/SC/2014/557] the Hon’ble Supreme Court has observed that there may have been some element of control with Nalco because its officials were nominated to the Managing Committee of the schools, only to ensure that the schools run smoothly and properly. This kind of ‘remote control’ would not make Nalco the employer of these workers. This only shows that since Nalco is shouldering and meeting financial deficits, it wants to ensure that the money is spent for the rightful purposes.

34. In the case in hand, the nature and extent of administrative and financial control of the HDC over the Club is direct and complete and cannot be said to be a mere supervisory control, thereby establishing the relationship of employer and the employee between the two. The control demonstrated by the Club is merely a veil between the respondents and the petitioners which is required to be lifted. The decisions taken by the HDC with regard to the Club do not merely overlap with that of the Club but are conclusive and binding upon the Club.

35. Learned counsel for the respondents has drawn the attention of the Court to the fact that the Club not being registered under the West Bengal Societies Registration Act or under any other law, has no separate legal entity and is not entitled to frame any separate rules or by-laws. Just as the HDC is an entity of the KoPT, the guest house is also an entity of the KoPT.

36. Per contra, learned counsel for the petitioners has submitted that the Club being a non-statutory entity created for recreational purposes and having its own management, the same being an unregistered entity makes no difference.

37. Be that as it may, the questions laid down in the authority in Balwant Rai Saluja and Another (supra) have been answered by way of elaborate discussion hereinabove. The notices of the appointment and the appointment letters are issued by the Club as agents/representatives of the HDC and approval of creation and filling up of additional posts is given by the Deputy Chairman of the CPT. Remuneration of the employees is shouldered by the HDC.

38. Though the documents on record do not indicate who has the authority to dismiss and take disciplinary action, it can be held that the appointing authority being the HDC is vested with such powers.

39. It is pertinent to mention here that the 16th respondent has filed certain documents by way of an affidavit which demonstrate that the Club took steps against an employee for misconduct on his part and sanctioned loan in favour of an employee. These documents were not placed before the Tribunal by the 16th respondent despite having sufficient opportunity and most of the documents were in fact prepared during pendency of the writ petition. For the said reason, the documents relied upon by the 16th respondent cannot be taken into consideration by this Court.

40. Regarding continuity of service, since appointments were made as early as in 1989 and the employees are still in service, it can be inferred that they are in continuous service in the establishment. The extent of control and supervision of the HDC has been discussed at length earlier and it can be concluded without an iota of doubt that there exists complete control and supervision by the HDC/KoPT over the Club, which establishes employeremployee relationship between the petitioners and the employees/ respondents.

41. One Parbati Das who appears to be an erstwhile member of the Board of Trustees and the General Secretary of the Calcutta Port Shramik Union as on 8th December, 1991 has stated in a letter written to the Deputy Chairman HDC on that date that the guest house staff attached to Mumbai, Chennai, Cochin, etc have been treated as regular Port Trust employees like the other employees of the respective ports. The respondents undoubtedly stand on the same footing and therefore, cannot be deprived of the same relief.

42. In dealing with the issue under reference, the Tribunal has considered the material placed before it in its proper perspective and has arrived at a reasoned decision thereto. The order impugned does not suffer from violation of the principles of natural justice or statutory regulation and is not vitiated by considerations extraneous to the evidence and merits of the case. The conclusion arrived at by the authority, cannot, in the facts and circumstances of this case, be said to be so wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion. [State of Karnataka and Another (supra)]. There being no fault/lapse in the decision making process of the Tribunal, interference with the decision by the Writ Court while exercising jurisdiction under Article 226 of the Constitution, is not warranted.

43. In the light of the discussion made hereinabove, this Court is inclined to hold that the writ petition is devoid of merits and liable to be dismissed.

44. Accordingly, the writ petition being W.P.A. No. 10687 of 2020 is dismissed.

45. The award of the Central Government Industrial Tribunal at Kolkata passed on 19th December, 2019 is affirmed.

46. There shall however be no order as to costs.

47. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.

LATER:

Learned counsels appearing on behalf of the petitioners and the respondent no. 16 pray for stay of operation of the judgment. The prayer is considered and rejected.