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In such a case,that branch of the law and its remedies should and normally will be applied; and (b) Where there is a contract between the litigants Ratio |
In such a case the express or implied terms of the agreement should normally govern the matter Ratio |
This reflects the normal approach of English law,namely,that the terms of a contract will normally govern the transaction,or other relationship between the parties,rather than the general law Ratio |
Thus,where a special method of resolving disputes (such as arbitration or resolution by private or domestic Tribunals) has been agreed by the parties (expressly or by necessary implication),that regime,and not judicial review,will normally govern the dispute Ratio |
The High Court has relied very strongly on the decision of a learned Single Judge in T.Gattaiahs case wherein it was stated that a writ may lie under Article 226 of the Constitution against a company incorporated under the Companies Act,1956 as it is permissible to issue a writ against any person Ratio |
Prima facie,therefore,a private person or an incorporated company cannot be taken out of the sweep and the contemplation of Article 226 of the Constitution Ratio |
That decision does not take note of the fact as to the nature of the functions that a person or an incorporated company should be performing to attract judicial review under Article 226 of the Constitution Ratio |
In Anadi Muktas case this Court examined the various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public du... |
In the present case,the appellant is engaged in the manufacture and sale of cigarettes Ratio |
Manufacture and sale of cigarettes will not involve any public function Ratio |
Incidental to that activity there is an obligation under Section 46 of the Act to set up a canteen when the establishment has more than 250 workmen Ratio |
That means,it is a condition of service in relation to a workman providing better facilities to workmen to discharge their duties properly and maintain their own health or welfare Ratio |
In other words,it is only a labour welfare device for the benefit of its work force unlike a provision where Pollution Control Act makes it obligatory even on a private company not to discharge certain effluents Ratio |
In such cases public duty is owed to the public in general and not specific to any person or group of persons Ratio |
Further the damage that would be caused in not observing them is immense Ratio |
If merely what can be considered a part of the conditions of service of a workman is violated then we do not think there is any justification to hold that such activity will amount to public duty Ratio |
Thus,we are of the view that the High Court fell into error that appellant is amenable to writ jurisdiction Ratio |
This Court in Indian Petrochemicals Corporation Ltd.& Anr.vs Ratio |
Shramik Sena & Ors.,1999(6) SCC Ratio |
439 1999 Indlaw SC 513,referred to the decisions in Parimal Chandra Rahas case,Reserve Bank of India vs Ratio |
Workmen,1996 Ratio |
3) SCC 267,and M.M.R.Khan vs Ratio |
Union of India,1990 Supp Ratio |
SCC 191 1996 Indlaw SC 618,and held that the workmen of a statutory canteen,as in the present case,would be workmen of an establishment for the purposes of the Act only and not for other purposes Ratio |
Thereafter,this Court further examined whether the material on record would show that the workmen are employees of the management for all purposes and adopted some of the tests as follows Ratio |
The canteen has been there since the inception of the appellants factory FAC |
The workmen have been employed for long years and despite a change of contractors the workers have continued to be employed in the canteen FAC |
The premises,furniture,fixture,fuel,electricity,utensils,etc.have been provided for by the appellant FAC |
The wages of the canteen workers have to be reimbursed by the appellant FAC |
The supervision and control on the canteen is exercised by the appellant through its authorised officer,as can be seen from the various clauses of the contract between the appellant and the contractor FAC |
The contractor is nothing but an agent or a manager of the appellant,who works completely under the supervision,control and directions of the appellant FAC |
The workmen have the protection of continuous employment in the establishment FAC |
In the present case,the findings recorded by the learned Single Judge on examination of the facts available is that there had been a canteen within the premises of the appellant up to the year 1982 and it is only from 1982 onwards the management of the canteen has been entrusted to a private contractor; that even after... |
that the management exercises control over the standard in quality,quantity and the rate of the food items supplied to the workmen for whose benefit the canteen is established Ratio |
Thus,these circumstances clearly indicate that the appellant has a complete control over the Activities in respect of the canteen and the contractor has absolutely no discretion either in regard to the menu,quality and quantity of the food items much less the rate at which the same are supplied to the workmen Ratio |
When the management of the appellant exercises such a complete control,the canteen shall be deemed to be run by the management itself Ratio |
The appellant in any manner cannot controvert these facts Ratio |
We do agree that the respondents have a strong case on merits Ratio |
Since we have held that the High Court had no jurisdiction to entertain a petition under Article 226 of the Constitution,we would have set aside the order made by the High Court Ratio |
However,in the special features of the case,although we do not agree with the High Court on the first question raised,we feel,after clarifying the legal position,that we should not disturb the decision given by the High Court Ratio |
The appeal,therefore,stands dismissed subject to what is stated in regard to writs to be issued by the High Court in respect of persons or authorities exercising public duty or otherwise RPC |
No costs RPC |
Civil Appeal Nos.6533/97 & 6534/97 RPC |
In these appeals,on a reference made on the question whether certain persons employed in the canteen should be treated as employees of the appellant and,if so,in what category they are to be fitted in and to what wages they are entitled to,the Industrial Tribunal,Hyderabad,[hereinafter referred to as the Tribunal] inqu... |
The contesting respondents contended that the workmen in the canteen had been working right from its inception,that is,since 1967; that from 1976 onwards,after expiry of the contract with the Industrial Catering Services,they had been directly working with the appellant without any contractor; that they sought for regu... |
The Tribunal concluded that there was no doubt that the Personnel Manager modified Ex.W-50 and obtained Ex.W-49 in the modified form ARG |
The Tribunal held against them,as there was no material to show that the management had discussed on each point and thereafter an agreement had been drafted FAC |
The Tribunal recorded the findings that the canteen had been working for the benefit of the workmen within the premises provided by and with the equipment supplied by the appellant; that the appellant supplies the provisions for the preparation of foodstuffs; that the appellant issues token to the employees,who on prod... |
The contributions like ESI,Provident Fund,etc.had also been categorically specified to be provided by the appellant and ESI code for the permanent establishment and for the present workmen was the same; that after the evidence was tendered by the workmen the appellant got the code changed and the appellant transferred ... |
Thus the Tribunal held that these facts clearly indicated that the appellant exercised administrative,financial and disciplinary control over the workmen in question FAC |
The Tribunal held that no other material is required to hold them to be employees of the appellant FAC |
In those circumstances,the Tribunal passed an award that these workmen should be treated as employees of the appellant and they are entitled to payment of appropriate scales and designations in terms of Ex.W12 and W14 from 1 April 1979 with all consequential and attendant benefits of arrears of pay,etc.together with co... |
Against this award,a writ petition was filed before the High Court FAC |
The High Court dismissed the same stating that it is covered by another matter FAC |
It is unnecessary to examine the contention whether the matter is covered by a subsequent decision or not as the facts of the present case stand on its own FAC |
The reference had been made to the Tribunal and adjudication had been made by the Tribunal as to the status of the workmen,the nature of employment,control exercised by the appellant,which leave no room for doubt that they are the employees of the appellant FAC |
A contention is also sought to be made that it is not possible to run a canteen in the refinery area ARG |
It is contended that under the Petroleum Rules framed under the Petroleum Act,1934,there are certain hazardous areas where there cannot be a canteen as no fire,furnace,source of heat or light capable of igniting inflammable vapours shall be allowed except in the firing spaces or stills and boilers ARG |
However,there is no material on record to show that the canteen is located in such an area where it would be hazardous to have a fire,furnace,source of heat or light to cook food Ratio |
In the absence of such material,we find no substance in this contention Ratio |
It is brought to our notice that a fire had taken place on a tank on 14 September 1997 and that it was extinguished after 14 days,which severely damaged all the building including the canteen and that food and beverages being provided to its employees by making an arrangement to obtain the same from outside the premise... |
These facts are brought to our notice by an affidavit filed on 21 November 2000.But these factors do not come in the way of the award made by the Tribunal,as it is possible to locate the canteen in an appropriate place where there is no hazard of the kind envisaged under the Petroleum Rules Ratio |
This contention is also rejected Ratio |
In the circumstances aforesaid,the contention vis--vis the findings recorded by the Tribunal,we find absolutely no merit in these appeals and the same shall stand dismissed RPC |
A suit was filed in S.C.Suit No.493 of 1986 in the Bombay City Civil Court,Bombay by Vicco Laboratories,appellant herein,manufacturers of ayurvedic pharmaceutical products against defendant Nos.1 to 4,respondents herein,for a declaration that the title and format of the suit serial "Yeh Jo Hai Zindagi" exclusively belo... |
A number of averments germane to this case as set out in the plaint are set out hereunder FAC |
The petitioners carried on business as manufacturers of ayurvedic pharmaceuticals products,which were sold under the brand name of "Vicco" and have acquired substantial reputation in the market FAC |
The 1st respondent are an advertising agency and have been the advertising agents in respect of the products manufactured by the petitioners as aforesaid for number of years FAC |
The 2nd respondent is a Director and/or partner of the 1st respondent and has mainly dealt with the petitioners on behalf of the 1st respondent FAC |
Respondents Nos.3 & 4 are proprietary concerns of respondent No.2.The 5th respondent is the Union of India and has been joined as the authority concerning Television in India in the name and style of Doordarshan,which is a television media FAC |
The petitioners had employed the respondent Nos.1 to 4 as their advertising agents through the petitioners' sister concern "M/s Modern Advertising Agency" and "Uta Advertising Agency" and were dealing with the respondent No.1 mainly through the petitioners Managing Director,G.K.Pendharkar FAC |
In 1984,Doordarshan in order to popularize sponsored serial,undertook the production of a serial by the name "HUMLOG".The petitioners are also pioneers in making use of Doordarshan for advertising their products through the agency of the 1st respondent,approached the 1st respondent to act as their agents for the purpos... |
The petitioners agreed to pay the entire costs of the said production to the said advertising agency and requested it to look into the matter,employed various persons on behalf of the petitioners and prepare a suitable serial for them FAC |
Pursuant to the said arrangement,the respondent Nos.1 to 4 as the agents of the petitioners prepared at the costs and expenses of the petitioners,a serial entitled "Yeh Jo Hai Zindagi".The petitioners claimed that as a result of the employment of the respondent Nos.1 to 4 and the finances paid by them the petitioners a... |
The first and second respondents under the arrangement produced about 60 episodes and the petitioners have spent a crore of rupees for the products and telecast of the said episodes and have also spent large sums of money on advertising to popularize the said programme."Yeh Jo Hai Zindagi" had gained popularity and had... |
The petitioners claimed that the exclusive right to use the title thereof belonged to them and the 2nd episode of "Yeh Jo Hai Zindagi" was telecast without the name of the petitioners being mentioned as sponsors nor was their advertisement shown FAC |
This was due to the negligence of the respondent Nos.1 to 4.But the respondents recovered the cost of production from the petitioners FAC |
Further the said respondents had been recovering the cost of production well in advance of the serial episodes being actually produced FAC |
The petitioners claimed that they were the real producers and owners of the said serial "Yeh Jo Hai Zindagi" and the petitioners to the knowledge of the respondents have entered into an agreement assigning the video rights in the said serial to one M/s Esquire Distributing and Servicing Pvt FAC |
Ltd.on FAC |
01 January 1985.The petitioners though not required to do so,made an ex gratia payment to respondent Nos.1 to 4 of a portion of the royalty received by them from the said M/s Esquire Distributing and Servicing Pvt.Ltd FAC |
1st and 2nd respondents had by their letter dated 14 December 1984 confirmed that the petitioners have all T.V.and video rights of the sponsored programme in Hindi "Yeh Jo Hai Zindagi" and vest with the petitioners FAC |
Though original agreement was to have 27 episodes but having regard to the popularity of the programme the petitioners decided to increase the said serial to 52 episodes and by a letter dated 22 April 1985 the petitioners informed respondent Nos.1 and 2 that in the title of the 27th and 28th episodes it has been stated... |
The respondents on 27 December 1985 alleged that they were losing Rs.50,000/-to Rs.75,000/-per episode and indicated that they wanted to get a new sponsor FAC |
By their letter dated 02 January 1986 the petitioners informed the 1st and 2nd respondents that it was not possible to increase the costs of production for the episodes and that in the circumstances,the production of the serial may stop FAC |
It was also pointed out that the name "Yeh Jo Hai Zindagi" is associated with the "Vicco Laboratories" and that if they wanted to obtain another sponsor they could produce a new serial under a different name FAC |
The petitioners apprehended that the respondent Nos.1 to 3 intended to produce further episodes under the title "Yeh Jo Hai Zindagi" making use of the same format as the earlier serial for and on behalf of the third party FAC |
The petitioners reserved their right to sue for damages in terms of Order II,Rule 2 CPC FAC |
The respondent Nos.1 to 4 in their written statement contested the suit FAC |
Apart from raising the question of valuation of the suit and the pecuniary jurisdiction of the court to try the same they also raised question that the petitioners are not the owners of the copyright in the said serial within the meaning of S.17 of the Copyright Act,1957 and the copyright in respect of the said serial ... |
Therefore,it was submitted that the suit lacked cause of action ARG |
While traversing the case on merit they contended that it was all along agreed between the petitioners and respondents that the copyright in the said serial would rest exclusively in the respondents and not in the petitioners ARG |
Thus the respondents' name was shown in the title of the said serial as the producer thereof right from the beginning of the said serial but the petitioners did not protest against the same ARG |
Consistently with the said intention further,the master cassette of the said serial at all relevant times remained exclusively with the respondents and not with the petitioners and the petitioners paid to the respondents 50% of the royalty received from M/s Esquire Distributing and Servicing Pvt ARG |
Ltd.under the agreement dated 1 Januray 1985,04 March 1985 and 16 September 1985.The advertisements issued by the petitioners themselves in various newspapers to give wide publicity to the said serial would indicate that the serial mentioned these respondents' are the owners of the copyright in respect of the said seri... |
The respondents also contended that even assuming but without admitting that even if the petitioners are the owners of the copyright in respect of the said serial as on the date of the suit they ceased to be such owners in view of the fact that these rights vested in them before the institution of the suit and they hav... |
It was also contended that the 2nd respondent is an artist and a film maker and has been in the field of film making for the past 20 years ARG |
In the course of his business the 2nd respondent has developed contacts and connections with important and renowned personalities,artists,technicians etc.in the film industry ARG |
In the year 1967,the 2nd respondent's wife Mrs ARG |
Sunanda S.Oberoi started the proprietary business of advertising agency in the name and style of Art Commercial and the 2nd respondent used to work in various capacities for the said firm ARG |
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