State of Haryana through Director, Pt. B.d. Sharma Postgraduate v. Smt. Kamlesh & Anr.

Judgment

2. 3. Whether Reporters of local papers may be allowed to see the judgment ? To be referred to the Reporters or not ? Whether the judgment should be reported in the Digest? K. KANNAN J. -.-

1. The State of Haryana through Director of the Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak (hereinafter called the 'Institute') seeks for quashing of the award that directed reinstatement of the workman. The claim of the workman that she had been illegally terminated from her services without any notice on 01.02.1990, was resisted by the management on the ground that she was not a workman under the Institute and that she had been appointed merely by the Students Council of the hostel at the Mess,

which was run on a cooperative basis. The contention of the Institute had been that the students had engaged Mess servants on their own and no permission had been sought from the Institute in order that she C.W.P No.12350 of 1995 -2- could treat herself in employment. She had been terminated when she was found in surplus by the decision of the Students Council and therefore, the petitioner could have had no grievances against the management.

2. This contention was rejected by the Labour Court and the writ petition challenges the award of the Labour Court and the finding that there had been a relationship of employer and employee between the Institute and the Workman. Learned counsel appearing for the petitioner, Sh. Nalwa refers to the fact that they had their own workmen on regular basis and while it was admitted that the hostel was being run by the Institute and the hostel employees were also the employees of the Institute, he would contend that as far as Mess was concerned, it was merely an appendage to the hostel and the persons employed in the Mess were employed by the students for their own benefit to bring food and other items from the Mess to their rooms and when it was decided by the Students Council that there were some persons in excess of the requirements, they had decided to terminate the services. It was not in any way the decision of the management and therefore, the workman was not entitled to obtain any relief for reinstatement.

3. Learned counsel appearing for the workman, in an attempt to show an overall control and supervision that the Institute had not merely in the affairs of management of hostel but also the Mess run, referred to the Maharishi Dayanand University Calendar under which the Institute had been established, containing the details of the powers of the University, their powers to make ordinances and regulations C.W.P No.12350 of 1995 -3- with reference in particular to the employees at Mess. Section 5 of The Maharishi Dayanand University Act, 1975 sets out, inter alia, its power to supervise, control and regulate the residence, conduct and discipline of the students of the University and of Institutes and Institutions within the jurisdiction of the University. Section 17 of the Act makes provision for the Executive Council to make, amend or repeal ordinances subject to certain limitations and Section 18 of the Act empowers the authorities of the University to make regulations consistent with the Act. The ordinance, relating to residents' health and discipline obligates every student who is not residing with his or her parents or guardian approved by the Head of the Department, shall stay at the University hostel (Ordinance 4). Ordinance 15 empowers the University to collect fee from the students to meet the various schemes and activities meant for the welfare of the students and that fee shall be deposited with the University. The fee includes Mess charges of Rs.800/- that shall be realized and deposited with the University. Volume 3 of the Calendar that sets out several aspects of regulations and Chapter 39 details the establishment and control of hostel funds that include that every warden shall prepare an Annual Estimate of income and expenditure and obtain approval of the Chief Warden and the Vice Chancellor, provided that in respect of Hostels of the University/College, the respective Principals shall enjoy all financial and administrative powers which are enjoyed by the Chief Warden in respect of the Hostels of the University Teaching Departments. The Warden is also expected to be maintain current accounts with the bank into which all income realized on account of C.W.P No.12350 of 1995 -4- hostel funds shall be credited. The Hostel Regulations contained in Chapter 55 mandates that every student seeking admission at the Hostel must apply separately in a prescribed form to the Chief Warden of the Institute and paragraph 3 of the Regulations requires that all students shall take their meals in the Hostel Mess and that the meals will be served only at the dining halls during the hours notified.

4. The reference to all the acts and regulations have been made only to show that there is no option left to the students than to avail the services of the Hostel and their personnel in order that they board at the hostel and continue their education in the Institute. The control of the University is pervasive and it leaves no doubt that they have absolute administrative and financial control over all affairs including the Mess. If the Students Council has any role to play in determining the number of staff that shall be employed in the Mess or if they have been in any way utilizing any special services by requiring them to carry food from the Mess to their rooms, they may be taken merely as ancillary functions and even if some powers are exercised by the student body they do not derogate from the power retained by the Institute attached to University for running of the Mess in the Hostel. Learned counsel appearing for the workman had put on record the certificate issued by the Hostel Warden to the effect that the workman had been employed as a Mess Servant from 01.06.,1984 till the year

1990. This document had been relied on by the Labour Court to find that since it had been issued by the Girls' Hostel Superintendent, it must be taken that the workman was also under the direct employment of the Hostel/Institute. Learned counsel, Mr. Nalwa would explain C.W.P No.12350 of 1995 -5- this as meaning no more than a certificate of conduct by a Superintendent of Hostel who was bound to know every servant in the hostel and the men but that by itself does not prove that she was an employee of the Institute/University. It must be remembered that it is not just a certificate that clinches the issue as the evidence of the workman and the management witnesses themselves. The Warden, who had issued the certificate Smt. Ranjit Juneja, admitted in her evidence that they gave all the persons working in the Mess uniform, shoes and other benefits. While she sought to explain the certificate by saying that it was issued to get medical service because she was paid Rs.300/- from the hostel, she also admitted that Santosh and Chanderkanta, specifically stated as persons juniors to the workman, had been still in employment of the hostel. The workman herself had given evidence that the appointment had been given only by the Hostel Superintendent. She also complained that while she was retrenched from service junior persons like Kamla, Chanderkanta and Santosh were still working.

5. Learned counsel appearing for the workman refers to the decision of the Hon'ble Supreme Court in G.B. Pant University of Agriculture & Technology, Pantnagar, Nainital Vs. State of U.P. and others (2000) 7 SCC 109 that held with reference to workmen in a Cafeteria required by regulations to be maintained in a residential university and to be compulsorily used by resident-students, the workmen in such a Cafeteria were held employees of the University. The Hon'ble Supreme Court held that twin conventional tests of implicit obligation and overall control and supervision as determining C.W.P No.12350 of 1995 -6- the issue. The said decision was read in the context of Cafeteria employees claiming to be treated as employees of the University and claiming parity in treatment as regards wages. The Hon'ble Supreme Court exhorted, in case of deprivation of weaker section that Courts must rise to the occasion and grant relief to a seeker of justice to a cause. The principles of fairness that the Hon'ble Supreme Court expounds cannot be put applied to a better situation than what obtains in this case.

6. The award of the Labour Court, which found the workman as an employee of the Institute is perfectly justified. If we examine the case in context of law laid down by the Hon'ble Supreme Court referred to above, the termination without complying with the provisions of Section 25-F and terminating the services even while retaining the junior members in the hostel is in clear violation of Section 25-F and H and the reinstatement order is in accordance with law.

7. The writ petition fails and it is consequently dismissed. August 10 , 2009 Pankaj* (K. KANNAN) JUDGE