The Workmen Of Northern Railway ... vs The Management Of Mess Committee, ...
2008 Latest Caselaw 1817 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             LPA NO.2419/2006 & CMA 17784/2006

                                                                    th
                                                Date of Decision : 15 October, 2008

THE WORKMEN OF NORTHERN RAILWAY ZONAL
TRAINING SCHOOL                                    .....Appellant
                   Through Mr. B.K. Pal, Advocate.
             versus

THE MANAGEMENT OF MESS COMMITTEE
UTTAR RAILWAY                                   .....Respondent
                 Through Mr. Atar Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?                 Yes

2.     To be referred to the Reporter or not?              Yes

3.     Whether the judgment should be
       reported in the Digest?                             Yes
                                       JUDGMENT

15-10-2008

: MUKUL MUDGAL, J. (ORAL)

1. Admit. With the consent of the learned counsel for the parties, the appeal is

taken up for final hearing.

LPA 2419/06 Pg. 1 of 7

2. The appellant had raised a dispute before the Central Government Industrial

Tribunal in the following terms:-

"Whether the action of the president, Mess committee Uttar Railway zonal Training School, Chandausi Muradabad terminating the services of 25 workmen with effect from 16.8.84 is justified, If yes to what relief the workman is entitled to?"

"Whether the service conditions of all the workers of Mess Committee should be in accordance with the service conditions of Railway workers, if yes, to what relief the workmen are entitled to?"

"Whether all the workers of Mess Committee should be no (at)(sic.) par with industrial workers and given D.A. And bonus. If yes, to what relief the workmen are entitled to?"

"Whether the president Mess Committee is justified in compulsory (compulsorily)(sic) retiring Moti Ram, Safaiwalle, Choke Safaiwala and Roop ram st Chapati man from 31 July, 1984. If not, to what relief the workmen are entitled to?"

th

3. The said dispute resulted in an award dated 30 July, 1993 of the Tribunal

dismissing the claim of the members of the appellant/writ petitioner who were

working in the Mess run for the trainees of the Railway Institute. The Tribunal

had inter alia held that the activities carried on by the members of the petitioner

LPA 2419/06 Pg. 2 of 7 union did not amount to industry covered by the tests laid down in Bangalore

Water Supply and Sewerage Board vs. A. Rajappa and others, AIR 1978 SC 548.

The aforesaid award was challenged before the learned Single Judge by filing writ

petition No. 1884/1994. The learned single Judge dismissed the writ petition by

adopting the following reasoning:-

"7. An organisation in order to qualify as an industry must satisfy the triple test laid down by the Supreme Court in Bangalore Water Supply and Sewarage Board v. A.Rajappa 1978 (2) SSC 213 - viz. (i) systematic activity (ii) cooperation between employer and employee and (iii) production and distribution of goods and services calculated to satisfy human wants and wishes. It is obvious that the production and distribution of goods and services envisaged by the Supreme Court are those which the employer produces or generates for others; if an employer produces or generates goods or services with the help of an employee for his own consumption then it cannot be said that the organisation or committee is an industry.

8. In the present case, mess committee had employed members of petitioner to cook food etc. for their own consumption. They had not employed the petitioners to produce goods or services to satisfy the needs of others."

4. The learned Single Judge in paragraph 7 of the judgment correctly laid

LPA 2419/06 Pg. 3 of 7 down the three tests set out by the Hon'ble Supreme Court in the case of A.

Rajappa (supra) to determine whether the requirement of being an industry were

satisfied namely (i) systematic activity (ii) cooperation between employer and

employee and (iii) production and distribution of goods and services calculated to

satisfy human wants and wishes. Inspite of laying down the correct principles, in

our view the learned Single Judge had erred in holding that the aforesaid tests do

not apply to the present case. It is not in dispute that the members of the

petitioner/union were employed in the Mess to cook and serve food for the

trainees. Thus there was definitely a systematic activity of production of food for

consumption by the trainees of the Railway Training Institute. This obviously

involves cooperation between the employer the Mess and the employee, i.e., the

member of the petitioner union satisfying the first and second tests formulated in

the judgment of Bangalore Water Supply & Sewerage Board (supra). The third

test relates to production and distribution of goods and services calculated to

satisfy human wants and wishes. The production of food stuff and distribution

thereof obviously satisfies the third test applied in the above judgment. There can

LPA 2419/06 Pg. 4 of 7 be no more basic human want than hunger. Therefore, neither the learned Single

Judge nor the Industrial Tribunal were justified in dismissing the writ petition and

the claim before the Tribunal on the ground that the activity carried on by the

member of the appellant union did not amount to an activity which led to the

existence of an industry. In our view, all the three tests laid down by the

Bangalore Water Supply case (supra) being satisfied, the dismissal of the claim

and the writ petition on the ground of the test of 'industry' not having been

satisfied, was clearly unsustainable.

5. In our view, the learned Single Judge had also erred in applying the law laid

down by the Hon'ble Supreme Court in Som Vihar Apartment Owners' Housing

Maintenance Society Ltd. vs. Workmen, (2002) 9 SCC 652, as the members of

the petitioner who were working in a mess could not be equated with the analogy

of domestic servants given in the above judgment. The above judgment in fact

arose from a dispute raised by employees of a housing society. It was held in para

7 as under by the Hon'ble Supreme Court:

"......It is clear when personal services are

LPA 2419/06 Pg. 5 of 7 rendered to the members of a society and that society is constituted only for the purposes of those members to engage the services of such employees, we do not think its activity should be treated as an industry nor are they workmen.........."

The above judgment related to employees of an apartment block which in

our view would not stand on the same footing as employees of a mess canteen. In

the present case, the mess canteen was not constituted only for the purposes of the

members to engage the services of such employees and accordingly cannot apply

in the present case. We have only answered the question on the maintainability of

the claim before the Tribunal and the claim raised by the workmen would have to

be examined on merits by the Tribunal.

6. In view of the above, the appeal is allowed. The judgment of learned Single

Judge dated 12th September, 2006 and the award of the learned Central

Government Industrial Tribunal dated 30th July, 1993 are set aside and the matter

is remanded to Central Government Industrial Tribunal. The parties are directed

to appear before the Central Government Industrial Tribunal on 27th November,

LPA 2419/06 Pg. 6 of 7 2008. The Tribunal is directed to dispose of the matter on merits as expeditiously

st as possible and preferably by 31 December, 2009.

7. The appeal and all pending applications stand disposed of accordingly.

                                                         MUKUL MUDGAL,J



                                                         MANMOHAN.J
October 15, 2008
kkb/dr




LPA 2419/06                                                                Pg. 7 of 7