Case: Reliance Energy Limited Vs. Rashtrawadi Kamgar Sangh & Others

Smt. Ranjana Desai, J.1. Admit. Respondents waive service. By consent of the parties, taken up for hearing forthwith.2. Before we deal with the merits of the case, we must state that since, here we are concerned with an interim order, we tried to bring about some amicable interim arrangement which could operate during the pendency of the complaint, without prejudice to the rights and contentions of the parties. We were, however, not successful in our efforts and, hence, we have proceeded to hear this appeal finally.3. The appellants are original petitioners. They are a public limited company engaged in the business of supply of electricity in the suburbs and surrounding areas of Mumbai and Thane District. They shall be referred to as the appellant company for convenience. The appellant company is covered by the provisions of the Bombay Industrial Relations Act, 1946 (for short, "the BIR Act"). Respondent 1 is a union registered under the Trade Unions Act, 1946. It represents 41 workmen with whom we are concerned here. For convenience, we shall refer to them as "the said employees". Respondent 1 shall be referred to as "the complainant-union". Respondent 2 is the contractor and shall be so referred to.4. The complainant-union filed Complaint (ULP) No.72 of 2007 in the XII Labour Court at Bombay against the appellant company alleging unfair labour practice under item 1(a), 1(b), 1(d) and 1(f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971 (for short, MRTU & PULP Act). It would be appropriate to state the case of the complainant-union, the appellant company and the contractor in short.5. The case of the complainant-union.The said employees are working with the appellant company for the last about 25 years. During 25 years, three contractors were interposed by the appellant company. The contractor is the last of the three. Though the contractors have come and gone, the said employees have continued to work with the appellant company. The said employees are working in the housekeeping department. The work of housekeeping is regular, permanent and of perennial nature. The introduction of the contractors is a ruse or camouflage. The said employees are covered by the definition of the term employee given under section 3(13) of the BIR Act and, therefore, they are the employees of the appellant company alone. On 15/2/2007, the appellant company in collusion with the contractor issued cheques for certain amounts in full and final settlement of their dues. The said employees have not encashed the said cheques. Since the appellant company has decided to shift its activities to Bandra-Kurla Complex, they want to get rid of the said employees. Housekeeping is the integral part of the appellant companys regular activities. Aggrieved by the unfair labour practices of the appellant company and apprehending termination of the services of the said employees, the complainant union filed the instant complaint praying inter alia for a declaration that the appellant company has engaged in unfair labour practices, for a direction restraining it from engaging in unfair labour practices and for a direction to the appellant company to reinstate the said employees with full back wages and continuity of service if their services are terminated. An application for interim relief was filed praying that the appellant company may be directed to maintain status quo in respect of the employment of the said employees. The complaint and the application for interim relief were filed on 23/2/2007.6. On 23/2/2007 the Labour Court passed the following order:"Heard the learned Advocate for the complainant union and the learned Advocate for the respondent No.2 too. The status quo as on today stands granted till filing of reply as it is informed across the bar that the enlisted workmen have been as on today in the employment of the respondent No.2.Issue Show Cause Notice to the Respondents returnable on 22/3/2007."There is no dispute before us about the fact that when this order was passed learned counsel for the appellant company was present.7. On 19/7/2007, the complainant union filed application for additional interim reliefs on the ground that on 2/4/2007 the appellant company had refused entry, work and wages to the said employees. The complainant union alleged that the services of the said employees have been terminated without following due process of law in breach of status quo order dated 23/2/2007. The complainant union contended that the said employees are the employees of the appellant company only though their wages are routed through the contractor. The complainant union inter alia prayed that the appellant company and/or the contractor may be directed to pay full wages to the said employees every month pending final hearing of the complaint.8. The case of the appellant company as evident from the affidavits in reply in short is as follows:The contract between the appellant company and the contractor has come to an end by efflux of time after 31/3/2007 and hence the appellant company has ceased to be the principal employer for the said employees on and from 1/4/2007. The determination of the said contract is neither under challenge nor can be challenged in the instant complaint and as such the appellant company cannot be held to be the principal employer. The said employees are paid wages by the contractor and the supervision and control of the work is done by the personnel of the contractor. The appellant company denied that the work of housekeeping is integral part of the regular work of the appellant company. Allegations of unfair labour practices were denied.9. The contractor resisted the interim application. The case of the contractor as evident from the affidavit of Shri Sahadev Betkar its proprietor is as under:The said employees are employed by the contractor and they have been deployed by the contractor at the premises of the appellant company. The wages and other service conditions of the said employees are determined and administered by the contractor. The contract between the appellant company and the contractor has come to an end by 31/3/2007 by efflux of time and till date the contractor has not terminated the services of the said employees. Prior to the contract coming to an end the contractor had told the said employees to report for work at the other sites where it is having similar contracts. However, the said employees told the contractor to settle their accounts finally as they did not wish to work further. They asked for ex-gratia payments which was also offered by the contractor. However, after accepting the cheques the said employees have approached the court challenging the alleged termination. Contractors readiness and willingness to give work to the said employees at other sites where the contractor is having similar housekeeping contracts is expressed in the affidavit.10. The Labour Court by its judgment and order dated 31/3/2008 decided both the applications. The Labour Court held that considering the definition of the term employer given in Section 3(14)(e) of the BIR Act, the owner of the undertaking is the appellant company and, therefore, it is the principal employer. The Labour Court concluded that the appellant union has committed unfair labour practices against the said employees i.e. work was not provided to them though they were ready to work; that they were removed from the place of work with the help of police and that they were not paid wages. The Labour Court held that balance of convenience is in favour of the employees and they will suffer irreparable loss, if interim relief is not granted in their favour. The Labour Court directed the appellant company and the contractor to jointly or severally pay full wages to the said employees every month till the disposal of the complaint. It directed the appellant company and the contractor to pay jointly or severally full wages of the said employees from 2/4/2007 during the pendency of the complaint. It directed the appellant company and the contractor to jointly or severally reinstate all the said employees. It further directed that, if the work is not provided the appellant company and the contractor shall jointly or severally pay wages to the said employees during the pendency of the case till the final disposal of the complaint.11. The appellant company as well as the complainant union challenged the said order by filing revision applications. The appellant company filed an application praying for the stay of the Labour Courts order. The said application was rejected. The appellant company, therefore, challenged the Labour Courts order by filing Writ Petition No.3116 of 2008. By judgment and order dated 9/7/2008 learned Single Judge of this court disposed of the said writ petition. Learned Single Judge noted that counsel for the parties are agreed that they will not seek adjournment before the Revisional Court with a view to disposing of the complaint within the stipulated time. Learned Single Judge directed the Industrial Court to dispose of the pending revision applications latest by July, 2008. A statement was made on behalf of the complainant union that it shall not proceed with the criminal complaint filed before the Labour Court till the revisions are decided. Learned Single Judge noted that the order was passed in view of the consensus arrived at between the parties. Accordingly Industrial Court decided the revision applications by its order dated 28/7/2008. Industrial Court concurred with the Labour Court. Industrial Court concluded that the work done by the said employees was ordinarily part of the work of the appellant-company. Industrial Court observed that real intention of the appellant company was to interpose contractors, so as to prevent the said employees from raising the plea of permanency.On a consideration of relevant judgments and relevant provisions of the BIR Act, particularly Section 3(13) and 3(14) thereof, the Industrial Court concluded that the said employees are workmen and the appellant company is the employer within the meaning of the BIR Act. While dealing with the submission that existence of a valid contract between the contractor and the principal employer is a sine-qua non for invoking Sections 3(13) and 3(14) of the BIR Act and since the contract had come to an end by efflux of time, there was no statutory relationship of employer employee between the appellant company and the said employees and hence the complaint was not tenable, the Industrial Court observed that on the date of filing of the complaint the contract was in existence and hence protection of the MRTU & PULP Act was available to the said employees. They had, therefore, rightly invoked the jurisdiction of the Labour Court. The Industrial Court felt that no interference was necessary with the impugned order. Both the revision applications came to be dismissed.12. Being aggrieved by the said judgment and order the appellant company preferred Writ Petition (L) No.1938 of 2008. Learned Single Judge dismissed the said petition. Hence this appeal.13. We have heard Mr. Cama learned counsel appearing for the appellant company at some length. He submitted that the Labour Court and the Industrial Court have fallen into a serious error in directing the appellant company to reinstate the said employees and pay them wages when the contract between the appellant company and the contractor had come to an end and, therefore, there was no statutory relationship of employer employee between them. Mr. Cama submitted that the said employees are the employees of the contractor. Mr. Cama pointed out that the contractor had made a statement that he had not terminated their services. He had offered them work at the places where he is having contracts but the said employees refused to work. Mr. Cama submitted that learned Single Judge has failed to notice this. Mr. Cama further submitted that though the complainant union had in its application for interim relief prayed that the appellant company may be directed to maintain status quo on 23/2/2007 the Labour Court observed that the said employees have been in the employment of the contractor and hence status quo as on that day stands granted. The status quo order, submitted Mr. Cama, therefore, operates qua the contractor and not the appellant company.14. Mr. Cama further submitted that the Industrial Court has misconstrued the provisions of section 3(13)(a) and section 3(14)(e) and has not considered the relevant case law cited before it. Mr. Cama submitted that existence of contract between the appellant company and the contractor is an essential ingredient of the definition of the term employer envisaged in section 3(14)(e) of the BIR Act. Since the contract has come to an end the Labour Court could not have entertained the complaint under the MRTU & PULP Act. Whether the contract labourers have become the employees of the principal employer and whether the contract is a mere camouflage can only be decided by the Labour Court and the Industrial Tribunal under the Industrial Disputes Act. In this connection, he relied on R.K. Panda & Ors. v. Steel Authority of India & Ors. 1994 (5) SCC 304. 15. Mr. Cama further submitted that in the judgment of this Court in State of Bombay v. The Maharashtra Sugar Mills Limited, AIR (38) 1951 Bombay 68, this court has elucidated the concept of statutory employee in relation to the BIR Act. He referred to the judgment of the Supreme Court in Steel Authority of India Ltd. & Ors. v. National Union Water Front Workers & Ors. etc. etc. 2001 III CLR 349 and pointed out that in that case the Supreme Court has clarified that decision in Maharashtra Sugar Mills Limited (supra) cannot be read as holding that when a contractor engages contract labourer in connection with the work of the principal employer, the relationship of master and servant is created between the principal employer and the contract labour. The Supreme Court has answered the issue "whether on a contractor engaging contract labour in connection with the work entrusted to him by a principal employer the relationship of master and servant between the principal employer and the contract labour emerges" in the negative.16. Mr. Cama submitted that the appellant company has denied that the work of housekeeping is integral part of its regular work. He referred to Full Bench decision of this court in Tukaram Mandhare v. Raymond Woollen Mills Ltd. 2005 (4) LLN 1039, where the Full Bench has held that if the complaint fails to disclose the jurisdictional fact that the "work being ordinarily part of the undertaking" in relation to the work which was entrusted to the workman of the contractor, the workman must get established the employer employee relationship by adopting appropriate proceedings before the appropriate forum under the BIR Act and it is only after the status of workman or employee is established in appropriate Forum that a complaint would lie under the provisions of the MRTU & PULP Act. Mr. Cama submitted that therefore while dealing with the instant complaint the Industrial Court could not have decided whether housekeeping was ordinarily the work of the appellant company. These issues must be first decided by adopting appropriate proceedings before the appropriate forum.17. Mr. Cama submitted that the Labour Court as well as the Industrial Court have granted final relief in the interim relief application which they could not have done. He submitted that learned Single Judge has also observed that the Labour Court has virtually granted final relief to the said employees but has wrongly condoned this by observing that the relief has been granted because there was a breach of status quo order. Mr. Cama submitted that it is amply clear that status quo was operating against the contractor. There is no privity of contract between the appellant company and the said employees and therefore learned Single Judge has proceeded on a wrong premise. In this connection, Mr. Cama relied on the judgment of the Supreme Court in Bank of Maharashtra v. Race Shipping and Transport Company Private Limited and Anr. 1995 (3) SCC 257 and judgment of this court in Ichalkaranji Municipal Council v. Raju Bandu Taral & Ors. 1999 1 CLR 1257.18. Mr. Cama further submitted that the Industrial Court could not have concluded that the contract was a camouflage. This question cannot be determined by the Labour Court or the Industrial Court constituted under the MRTU & PULP Act. In this connection, he relied on the Supreme Courts judgment in Cipla Limited v. Maharashtra General Kamgar Union & Ors. 2001 1 CLR 754. Mr. Cama submitted that the contractor has offered work to the said employees but they have refused to accept the offer. It was wrong to hold that balance of convenience tilts in their favour. Mr. Cama submitted that reliefs granted by courts must be logical and tenable and courts must not be guided by misplaced sympathy. In this connection, he relied on the Supreme Courts judgment in Kerala Solvent Extractions Limited v. Unnikrishnan 1994 1 CLR 820. Mr. Cama submitted that in the circumstances, the impugned judgment and order deserves to be set aside.19. We must also mention that Mr. Cama has tendered in this court copy of complaint (ULP) No.1269 of 1997 filed by Bombay Suburban Electric Workers Union against BSES Limited being the employer, against the contractor herein and against one Kumar who is also stated to be a contractor alleging unfair labour practice. This complaint was dismissed by the Industrial Court on 2/5/2001 on the ground that the complainant has alleged that the contract is sham and bogus and hence in view of Cipla judgment (supra), the Complaint is not maintainable. Mr. Cama submitted that the said employees were concerned with the said complaint and hence, it is not open for them to file this complaint. We cannot take cognizance of the said complaint filed in this court at this stage. It is not clear whether the parties are same. This argument of Mr. Cama, therefore, cannot be considered.20. Mr. Shaikh learned counsel for the complainant-union submitted that the appellants have challenged interim order passed by the Labour Court, confirmed by the Industrial Court and further confirmed by learned Single Judge in his jurisdiction under Article 226 of the Constitution of India. Mr. Shaikh submitted that it is well settled that while exercising its jurisdiction under Articles 226 and 227, the High Court does not re-appreciate the evidence. Only a patent error which does not require lengthy arguments is amenable to certiorari jurisdiction and if two options on the same material are reasonably possible the finding arrived one way or the other cannot be called a patent error. In this connection, he relied on Ranjeet Singh v. Ravi Prakash, 2004 (3) SCC 682. He also relied on the judgment of the Supreme Court in ONGC Limited v. Sendhabhai Vastram Patel & Ors. 2005 (6) SCC 454 where the Supreme Court has held that the High Court and the Supreme Court while exercising their equity jurisdiction under Articles 226 and 32 of the Constitution as also Article 136 thereof may not strike down even a wrong order only because it will be lawful to do so. A discretionary relief may be refused to be extended in a given case although the court may find the same to be justified in law. Mr. Shaikh submitted that the present case needs to be examined in the light of the above judgments. He submitted that this court in its writ jurisdiction and in a consequent appeal arising out order passed in writ jurisdiction should not interfere with interim orders. Mr. Shaikh also referred to the Supreme Courts judgment in The Premier Automobiles Limited v. Kamlakar Shantaram Wadke & Ors., AIR 1975 SC 2238 , where the Supreme Court has held that while deciding industrial dispute, the industrial adjudicator can create new contracts, lay new industrial policy for industrial peace, order reinstatement of dismissed workmen which ordinarily a civil court could not do.21. Mr. Shaikh relied on the judgment of this court in Maharashtra Sugar Mills Limited (supra), which is affirmed by the Supreme Court. He submitted that the said judgment is still a good law and is not set aside by the Supreme Court in its judgment in Steel Authoritys case (supra). He submitted that in Steel Authoritys case (supra), the Supreme Court was considering the provisions of Contract Labour (Regulations and Abolitions) Act, 1970 and not of the BIR Act and, hence, reliance placed on the said judgment by the appellant company is misplaced. Mr. Shaikh also relied on the Full Bench decision of this court in Tukaram Mandhares case (supra) in support of the contention that a complaint under the MRTU & PULP Act by an employee as defined under section 3(13) of the BIR Act is maintainable although no direct relationship of employer-employee exists between him and the employer. He also relied on the Supreme Courts judgment in Hindustan Lever Limited v. Ashok Kate, 1995 II CLR 823 SC where the Supreme Court has held that one of the purposes for which the MRTU & PULP Act has been enacted is to prevent an unfair labour practice from taking place and the court seized of a complaint under item 1 of Schedule IV of the MRTU & PULP Act can prevent such unfair labour practices by passing interim orders with a view to preventing such alleged unfair labour practices from getting fructified. Mr. Shaikh submitted that the Labour Court and the Industrial Court, therefore, cannot be faulted for passing the instant interim order which is confirmed by learned Single Judge. Mr. Shaikh submitted that the said employees have been working with the appellant company for the last about 23 years. Balance of convenience also tilts in their favour and, therefore, this court should not interfere with the impugned order.22. Mr. Talsania learned counsel appearing for the contractor reiterated the contractors stand taken in the affidavit filed in the Labour Court. He submitted that the said employees continue to be in the service of the contractor. The contractor has not terminated their services and the contractor is ready to give work to them at other sites. He submitted that the contract between the contractor and the appellant company has come to an end by efflux of time by 31/3/2007. Mr. Talsania relied on the judgment of learned Single Judge of this court in Sonal Garments v. Trimbak Karve, 2003 (1) LLN 91 where learned Single Judge has held that whenever employer offers to reinstate workman at any stage of the dispute and the same is not accepted by the workman without prejudice to his rights, the workman will not be entitled to continue his claim for reinstatement or for his claim for back-wages from the date of such offer. Mr. Talsania submitted that if the said employees now offer to work, the contractor should not be saddled with back-wages.23. We are mindful of the fact that we are dealing with an interim order which should not normally be interfered with unless it suffers from a patent error. We have also kept in mind the fact that the Labour Court and the Industrial Court have concurred on the points raised before them and learned Single Judge has endorsed the said view. We have also noted that learned Single Judge was dealing with a writ petition filed under Article 226 of the Constitution of India and we are seized of the appeal filed against the order passed in the said writ petition. Undoubtedly if two views on the same material are reasonably possible, then the learned Single Judge was perfectly justified in adopting one of the two views. He was entitled to refuse discretionary relief or pass appropriate order on considerations like maintenance of industrial peace. Learned Single Judge was not bound to strike down even a wrong order only because it will be lawful to do so. Keeping in mind these principles laid down by the Supreme Court to which our attention is drawn by learned counsel, we have approached this case. We are concerned here with MRTU & PULP Act and the BIR Act with particular reference to the definitions of the terms "employer" and "employee" delineated in the BIR Act.24. In Maharashtra Sugar Mills Limiteds case (supra), the industrial dispute between the Maharashtra Sugar Mills and its employees including the seasonal and contract labour was referred under section 13 of the BIR Act to the Industrial Tribunal. The Company contended that the Industrial Tribunal had no jurisdiction to arbitrate with reference to the contract labour employed in the industry. The Industrial Tribunal held that there was relationship of employer and employee between the company and the contract labour and hence it had jurisdiction to arbitrate the reference pertaining to contract labour. The Company challenged the Industrial Tribunals award. Learned Single Judge upheld the companys contention and quashed the award. In appeal, the Division Bench presided over by Chagla, C.J. referred to section 3(13)(a) and 3(14)(e) of the BIR Act and observed as under :"Therefore, reading the two subsections together the position is that when there is the owner of an undertaking and that owner of the undertaking does not employ labour directly, but enters into a contract with a contractor and the contractor supplies the necessary labour for the purpose of the undertaking of the owner, then the persons so employed or recruited or supplied by the contractor are as much the employees of the owner of the undertaking as if the owner had directly employed them. If I may put it in a different way, the Legislature has not chosen to make any distinction between a case where the owner of an undertaking employs labour and the ordinary relationship of master and servant is set up and the case where the owner interposes, as it were, a contractor between himself and the labour which is used for the purpose of his industry. The interposition of the contractor makes no difference to the relationship between the persons employed and the employer. In the eyes of the law, the relationship in both the cases is identical with the same rights and liabilities".This view was confirmed by the Supreme Court (95 (11 LLJ) 299).25. In Ciplas case (supra), the Supreme Court held that if the employees are working under a contract covered by the Contract Labour (Regulations & Abolition) Act, then the Labour Court or the industrial adjudicating authorities cannot have any jurisdiction to deal with the matter as it falls within the province of an appropriate court to abolish the same. If the case put forth by the workmen is that they have been directly employed by the Company but the contract itself is a camouflage and therefore needs to be adjudicated is a matter which can be gone into by appropriate Industrial Tribunal or Labour Court. Such question cannot be examined by the Labour Court or the Industrial Court constituted under the MRTU & PULP Act. The Supreme Court further held that, that can be done in a regular Industrial Tribunal/Court under the Industrial Disputes Act.26. In Steel Authoritys case (supra), the Supreme Court was dealing with the Contract Labour (Regulations & Abolition) Act, 1970. In that case, the Supreme Court has referred to the judgment of this Court in Maharashtra Sugar Mills Limiteds case (supra). The Supreme Court has observed that the said judgment is based on the definition of the terms "employer" and "employee" found in the BIR Act and the question which was considered by the Court was whether the contract labour was covered by the definition of "employee" under the BIR Act and whether the contract labour should be treated as employees of the company. The Supreme Court has observed that therefore the observations of this Court in that judgment cannot be read as holding that when a contractor engages contract labourers in connection with the work of the principal employer, the relationship of master and servant is created between the principal employer and the contract labour. This decision in our opinion retains the concept of statutory employee as envisaged in BIR Act as it does not say that the judgment of this Court in Maharashtra Sugar Mills Limiteds case (supra) is no longer a good law. Reliance placed by Mr. Cama on this judgment is wholly misplaced.27. In Mandhares case (supra), the Full Bench of this Court was concerned with the following questions:"1. Whether a person who is employed with a contractor who undertakes contracts for the execution of any of the whole of the work or any part of the work which is ordinary work of the undertaking is an employee within the meaning of S.3(5) of the MRTU & PULP Act2. Whether a complaint filed under the MRTU & PULP Act by an employee as defined under S.3 (13) of the Bombay Industrial Relations Act is maintainable although no direct relationship of employer-employee exists between him and the principal employer3. Whether a complaint filed under the MRTU and PULP Act by employees under S.3(13) of the BIR Act can be dismissed if the employer claims that they are not employed through a contractor in view of the judgments in Cipla (supra), Kalyani Steels Ltd. 2001 (1) LLN 282), and Sarva Shramik Sangh v. Indian Smelting and Refinery Company Limited 2004 (1) LLN 1)28. It is pertinent to note that the Full Bench relied upon the judgment of this Court in Maharashtra Sugar Mills Limited (supra) and distinguished the judgment of the Supreme Court in Cipla Limiteds case (supra) by observing that it is in respect of industry governed by the Industrial Disputes Act which does not contain an extended definition of employee as contained in section 3(13) of the BIR Act. The Full Bench observed that so far as the industries governed by the BIR Act are concerned, the contractors employees engaged for execution of the whole or part of the work of the undertaking are regarded as employees by the statute and, therefore, the question of establishing the status of such employees does not arise and the complaint filed by such employees will be clearly maintainable. The Full Bench concluded that a person who is employed through a contractor who undertakes contracts for execution of any of the whole of the work or any part of the work which is ordinarily work of the undertaking governed by the BIR Act is an employee within the meaning of section 3(5) of the MRTU & PULP Act and a complaint of such an employee is maintainable though no direct relationship of employer-employee exists between him and the principal employer. However, if the complaint fails to disclose the jurisdictional fact that the "work being ordinarily part of the undertaking" in relation to the work which was entrusted to the workman of the contractor, the workman must first get established the employer-employee relationship by adopting appropriate proceedings before the appropriate forum under the BIR Act and it is only after status of the workman or employee is established in appropriate forum that a complaint would lie under the provisions of the MRTU & PULP Act.29. The above settled law can be applied to the present case. So long as the contract between the appellant company and the contractor was subsisting in view of section 3(13) of the BIR Act, the said employees were statutory employees of the appellant company even though there was no direct relationship of employer employee existing between them and the appellant company and a complaint filed by the said employees under the MRTU and PULP Act was perfectly maintainable. Undoubtedly, as held by the Full Bench in Tukaram Mandhares case (supra), if the complaint fails to disclose the jurisdictional fact that "the work being ordinarily part of the undertaking" in relation to the work which was entrusted to the workman of the contractor, the workman must first get the employer employee relationship established by adopting appropriate proceedings before the appropriate forum under the BIR Act. But we find that in this case, the said employees have clearly disclosed this jurisdictional fact in the complaint. We must quote the relevant averments."(F)(ii) Thus the work of house-keeping i.e. sweeping the premises, keeping the premises clean and neat and all other incidental jobs, is a work of permanent, perennial and regular nature commented with the day-to-day activities of the Respondent No.1 company. This work is being carried out by the employees concerned herein, for last several years and the Management of the Respondent No.1 company certainly requires services of these employees for this work. ..... ...... .....(iii) That the services of all the employees concerned are very much / assentail because the work of keeping and work in connection with housekeeping is the integral part of the company a regular activities and the nature of work i.e. sweeping and keeping the premises clean and neat is such that it has to be carried out practically on day-to-day basis, without break. ...... ...... ......"30. It is true that the appellant company has denied this fact. But the appellant company cannot be heard to say that this jurisdictional fact is not disclosed in the complaint as required by the Full Bench in Tukaram Mandhares case (supra). Industrial Court has on consideration of the judgments of the Supreme Court in Commissioner of Customs, Mumbai v. M/s. J.D. Orgochem Ltd., 2008 AIR SCW 3893 and Pabbojan Tea Co. Ltd. v. Deputy Commissioner Lakhinpur & Ors. etc. 1968 (I6) FLR 1 held that it was not necessary for the complainant union even to plead that housekeeping is ordinarily part of the work of the undertaking of the appellant company because facts speak for themselves. The Industrial Court has observed that housekeeping is ordinarily part of the work of the undertaking of the appellant company. It is urged by Mr. Cama that this finding could not have been given by the Industrial Court in these proceedings. In our opinion, once the jurisdictional facts are stated in the complaint, unless the dispute raised by the appellant company that work of housekeeping is ordinarily not part of its work, appears to have substance, there is no question of getting it decided independently under the provisions of the BIR Act before approaching the Labour Court under the MRTU & PULP Act. In the facts of this case, we cannot fault the Labour Court for having proceeded with the matter. This submission of Mr. Cama must, therefore, fail.31. It is true that whether the contract is a camouflage or not cannot be decided by the Labour Court or the Industrial Court in a complaint filed under the MRTU & PULP Act. It has to be decided by the appropriate forum under the Industrial Disputes Act. Learned Single Judge has explained that the Industrial Court has used the word camouflage more in the sense of an excuse. In any case, these observations of the Industrial Court can be kept and should be kept out of consideration and obliterated. We are really concerned here with the question whether the order of status quo passed by the Labour Court on 23/2/2007 binds the appellant company as well as the contractor. When this order was passed admittedly counsel for all the parties were present. The Labour Court has noted the statement made by learned counsel for the contractor that the said employees were in the employment of the contractor as on 23/2/2007. Since on that day the contract between the appellant company and the contractor was subsisting in the light of the judgment of this court in Maharashtra Sugar Mills Limiteds case (supra) and in Tukaram Mandhares case (supra), the said employees were the employees of the appellant company.The statement made by counsel for the contractor does not alter this situation. Therefore, the status quo would bind the appellant company as well on 23/2/2007. In our opinion, the purpose of passing this order was obviously to preserve the conditions prevailing on 23/2/2007 until further orders of the court, so as to enable the court to examine all the issues involved in the case without change in circumstances. The effect of this order is that even if the contract was to come to an end by efflux of time, the appellant company and the contractor were expected to continue with it. The appellant company was expected to stay its hands and not engage other employees so as to frustrate the issues raised by the complainant union. This does not mean creation of new contract. But even if it is assumed for a moment that it amounts to creation of a new contract, in the circumstances of the case, the Labour Court cannot be faulted for passing the said order. Following observations of the Supreme Court in Premier Automobiles case (supra) persuade us to hold so."The powers of the authorities deciding industrial disputes under the Act are very extensive - much wider than the powers of a civil court while adjudicating a dispute which may be an industrial dispute. The industrial adjudicator can create new contracts, lay new industrial policy for industrial peace, order reinstatement of dismissed workmen, which ordinarily a civil court could not do."32. If the appellant company had stayed its hands, the Labour Court would have on the next date of hearing considered whether the contract had in fact, come to an end and if it had come to and end, what is the effect thereof. Instead of observing restraint the appellant company went ahead and removed the said employees with police help on the spacious ground that its contract with the contractor had come to an end and that the status quo order did not bind it. This was obviously done to frustrate the interim relief application of the complainant union. The Labour Court in its order dated 31/3/2008 noted that prima facie case was made out by the said employees. It noted that the said employees were removed with the police help and in the circumstances, direction was given to the appellant company and the contractor to jointly or severally reinstate the said employees and pay them full wages. While dealing with revision applications filed challenging the said order, the Industrial Court severely commented on the conduct of the appellant company and the contractor. The Industrial Court recorded, and in our prima facie opinion rightly so, that the connivance between the appellant company and the contractor is writ large on the face of record. The Industrial Court observed that the offer to provide work to the said employees made by the contractor is unprecedented. The Industrial Court referred to the Supreme Courts judgments which lay down that final relief should not be granted at interim stage and distinguished the present case from the said judgments on the ground that it is an exceptional case and granted reliefs in the nature of final reliefs.33. In the impugned judgment, learned Single Judge also commented on the conduct of the appellant company. He observed that there was an order of status quo and the said employees were removed from the premises albeit on the ground that the contract between the appellant company and contractor had come to an end. Learned Single Judge observed that circumstances justify the grant of what appears to be final relief because the Labour Court had initially granted relief which was rendered ineffective by the act of parties. We endorse this view of learned Single Judge.34. We are conscious of the fact that the Supreme Court has time and again deprecated the practice of granting final relief at the interim stage. In Bank of Maharashtras case (supra), the Supreme Court observed that it has deprecated time and again the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. We would, therefore, never approve of such orders unless exceptional case is made out and compelling reasons are present. We have no hesitation in recording that such exceptional circumstances are made out in this case.35. Mr. Talsania learned counsel for the contractor submitted that the contractor has all along expressed its willingness to employ the said employees at other sites and that offer continues even today. Since the said employees have refused the offer, the contractor cannot be saddled with payment of wages. Mr. Shaikh learned counsel for the complainant-union submitted that the appellant company is covered by the BIR Act. There is protection of the service conditions of the said employees which will be lost if they go to companies which are not covered by the BIR Act. He submitted that if the said employees take employment in other industries, if they succeed in the complaint they would not be able to get back to the appellant company even if their lien is preserved because the new employees will resist such a move.36. The complainant-union has not challenged the orders passed by the Labour Court and confirmed by the Industrial Court and affirmed by the learned Single Judge. Therefore, in the appeal filed by the appellant company, it cannot get any relief nor can we issue any clarification. We propose to keep these issues raised by Mr. Shaikh open. We, however reject Mr. Talsanias submission that the contractor cannot be saddled with wages. We have already expressed our concurrence with the view expressed by learned Single Judge that interim relief granted by the Labour Court was rendered ineffective by the act of the parties. In the circumstances of the case, therefore, the contractor cannot evade the joint or several liability to pay wages to the said employees along with the appellant company.37. Mr. Cama has drawn our attention to the Supreme Courts judgment in Kerala Solvent Extractions Limiteds case (supra) where the Supreme Court has observed that reliefs granted by the court must be logical and tenable and should not incur criticism that jurisdiction of courts tends to generate into misplaced, sympathy, generosity and private benevolence. We have therefore made an effort to meticulously go through the judgments cited before us and we feel that the view taken by us is in tune with those judgments and is, therefore, logical and tenable. The said employees are in the employment of the appellant company for the last about 25 years. They are working in the housekeeping department. Though the contractors have changed, the services of the said employees have been retained. In our opinion, balance of convenience tilts in their favour. They have been removed from the appellant companys premises with police help on the spacious ground that the status quo order does not bind the appellant company. The appellant company failed to observe restraint and tried to frustrate the status quo order. It is this conduct of the appellant company and the legal principles enunciated by the Supreme Court and by this court in the aforementioned judgments and not misplaced sympathy, generosity and private benevolence which persuade us to confirm the impugned order passed by Learned Single Judge confirming the orders passed by the Labour Court and the Industrial Court.

Decision:
0[ds]Undoubtedly if two views on the same material are reasonably possible, then the learned Single Judge was perfectly justified in adopting one of the two views. He was entitled to refuse discretionary relief or pass appropriate order on considerations like maintenance of industrial peace. Learned Single Judge was not bound to strike down even a wrong order only because it will be lawful to do so. Keeping in mind these principles laid down by the Supreme Court to which our attention is drawn by learned counsel, we have approached this case. We are concerned here with MRTUPULP Act and the BIR Act with particular reference to the definitions of the terms "employer" and "employee" delineated in the BIR Act.24. In Maharashtra Sugar Mills Limiteds case (supra), the industrial dispute between the Maharashtra Sugar Mills and its employees including the seasonal and contract labour was referred under section 13 of the BIR Act to the Industrial Tribunal. The Company contended that the Industrial Tribunal had no jurisdiction to arbitrate with reference to the contract labour employed in the industry. The Industrial Tribunal held that there was relationship of employer and employee between the company and the contract labour and hence it had jurisdiction to arbitrate the reference pertaining to contract labour. The Company challenged the Industrial Tribunals award. Learned Single Judge upheld the companys contention and quashed the award.In Ciplas case (supra), the Supreme Court held that if the employees are working under a contract covered by the Contract Labour (RegulationsAbolition) Act, then the Labour Court or the industrial adjudicating authorities cannot have any jurisdiction to deal with the matter as it falls within the province of an appropriate court to abolish the same. If the case put forth by the workmen is that they have been directly employed by the Company but the contract itself is a camouflage and therefore needs to be adjudicated is a matter which can be gone into by appropriate Industrial Tribunal or Labour Court. Such question cannot be examined by the Labour Court or the Industrial Court constituted under the MRTUPULP Act. The Supreme Court further held that, that can be done in a regular Industrial Tribunal/Court under the Industrial Disputes Act.Act.29. The above settled law can be applied to the present case. So long as the contract between the appellant company and the contractor was subsisting in view of section 3(13) of the BIR Act, the said employees were statutory employees of the appellant company even though there was no direct relationship of employer employee existing between them and the appellant company and a complaint filed by the said employees under the MRTU and PULP Act was perfectly maintainable. Undoubtedly, as held by the Full Bench in Tukaram Mandhares case (supra), if the complaint fails to disclose the jurisdictional fact that "the work being ordinarily part of the undertaking" in relation to the work which was entrusted to the workman of the contractor, the workman must first get the employer employee relationship established by adopting appropriate proceedings before the appropriate forum under the BIR Act. But we find that in this case, the said employees have clearly disclosed this jurisdictional fact in the complaint.It is true that the appellant company has denied this fact. But the appellant company cannot be heard to say that this jurisdictional fact is not disclosed in the complaint as required by the Full Bench in Tukaram Mandhares case (supra). Industrial Court has on consideration of the judgments of the Supreme Court in Commissioner of Customs, Mumbai v. M/s. J.D. Orgochem Ltd., 2008 AIR SCW 3893   and Pabbojan Tea Co. Ltd. v. Deputy Commissioner LakhinpurOrs. etc. 1968 (I6) FLR 1 held that it was not necessary for the complainant union even to plead that housekeeping is ordinarily part of the work of the undertaking of the appellant company because facts speak for themselves. The Industrial Court has observed that housekeeping is ordinarily part of the work of the undertaking of the appellant company. It is urged by Mr. Cama that this finding could not have been given by the Industrial Court in these proceedings. In our opinion, once the jurisdictional facts are stated in the complaint, unless the dispute raised by the appellant company that work of housekeeping is ordinarily not part of its work, appears to have substance, there is no question of getting it decided independently under the provisions of the BIR Act before approaching the Labour Court under the MRTUPULP Act. In the facts of this case, we cannot fault the Labour Court for having proceeded with the matter. This submission of Mr. Cama must, therefore, fail.31. It is true that whether the contract is a camouflage or not cannot be decided by the Labour Court or the Industrial Court in a complaint filed under the MRTUPULP Act. It has to be decided by the appropriate forum under the Industrial Disputes Act. Learned Single Judge has explained that the Industrial Court has used the word camouflage more in the sense of an excuse. In any case, these observations of the Industrial Court can be kept and should be kept out of consideration and obliterated. We are really concerned here with the question whether the order of status quo passed by the Labour Court on 23/2/2007 binds the appellant company as well as the contractor. When this order was passed admittedly counsel for all the parties were present. The Labour Court has noted the statement made by learned counsel for the contractor that the said employees were in the employment of the contractor as on 23/2/2007. Since on that day the contract between the appellant company and the contractor was subsisting in the light of the judgment of this court in Maharashtra Sugar Mills Limiteds case (supra) and in Tukaram Mandhares case (supra), the said employees were the employees of the appellant company.TheIndustrial Court recorded, and in our prima facie opinion rightly so, that the connivance between the appellant company and the contractor is writ large on the face of record. The Industrial Court observed that the offer to provide work to the said employees made by the contractor is unprecedented. The Industrial Court referred to the Supreme Courts judgments which lay down that final relief should not be granted at interim stage and distinguished the present case from the said judgments on the ground that it is an exceptional case and granted reliefs in the nature of final reliefs.33. In the impugned judgment, learned Single Judge also commented on the conduct of the appellant company. He observed that there was an order of status quo and the said employees were removed from the premises albeit on the ground that the contract between the appellant company and contractor had come to an end. Learned Single Judge observed that circumstances justify the grant of what appears to be final relief because the Labour Court had initially granted relief which was rendered ineffective by the act of parties. We endorse this view of learned Singlethe said employees have refused the offer, the contractor cannot be saddled with payment of wages. Mr. Shaikh learned counsel for thesubmitted that the appellant company is covered by the BIR Act. There is protection of the service conditions of the said employees which will be lost if they go to companies which are not covered by the BIR Act. He submitted that if the said employees take employment in other industries, if they succeed in the complaint they would not be able to get back to the appellant company even if their lien is preserved because the new employees will resist such aour opinion, balance of convenience tilts in their favour. They have been removed from the appellant companys premises with police help on the spacious ground that the status quo order does not bind the appellant company. The appellant company failed to observe restraint and tried to frustrate the status quo order. It is this conduct of the appellant company and the legal principles enunciated by the Supreme Court and by this court in the aforementioned judgments and not misplaced sympathy, generosity and private benevolence which persuade us to confirm the impugned order passed by Learned Single Judge confirming the orders passed by the Labour Court and the Industrial Court.