1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5296 OF 2009 Bharat Forge Ltd & Anr. ...... Petitioners. V/s Maharashtra General Kamgar Mahasangh & Anr. ...... Respondents. Mr. J.P. Cama, Senior Counsel with Mr. Rajiv Joshi & Rohan Cama i/b Sanjay Udeshi & Co. for the petitioners. Mr. N.M. Ganguli for respondent No.1. CORAM: V.M. KANADE, J. DATE : 22ND JUNE, 2009 P.C:- 1. Heard the learned Senior Counsel appearing on behalf of the petitioners and the learned Counsel appearing on behalf of the respondent No.1. 2 2. By this Petition, the petitioners are challenging the order passed by the Industrial Court dated 31/03/2009 in the Complaint (ULP) No. 236 of 2008 whereby the Industrial Court was pleased to direct that the application preferred by the petitioners challenging the maintainability of the complaint would be heard along with the application for interim relief filed by the complainant – respondent No.1 herein i.e Maharashtra General Kamgar Mahasangh Babu Bagul Chawl and as submitted by the learned Senior Counsel Shri Cama appearing on behalf of the petitioners across the bar that their submission for deleting the petitioners herein from the array of the parties was rejected. 3. Brief facts are that the respondent No.1 herein filed a Complaint (ULP) 236 of 2008. Petitioners herein have been added as respondent Nos.1 & 2 in the said complaint and in the said complaint the reliefs claimed by respondent Nos.1 & 2 in 3 para 39 are as under:- “39. The company prays that : a) It be declared that the company has not resorted to any Unfair Labour Practices as alleged. b) The Hon’ble Court may be pleased to dismiss the complaint as the same is not maintainable and no relief has been claimed against Respondent No. 1 and 2. c) The prayers made in the main complaint and application for interim relief be rejected. d) The Hon’ble Court may be pleased to pass such other orders as it deems fit in the interest of justice.” 4 An application was filed by the petitioners herein in which it is prayed that the Court may be pleased to dismiss the complaint for reasons mentioned in the paragraphs hereinabove. 4. Mr. Cama, the learned Senior Counsel appearing on behalf of the petitioners further submitted that though the said prayer has been made, in fact, one of the main contentions raised by the petitioners in their application is that the petitioners – respondent Nos.1 & 2 in the complaint are not proper and necessary parties. He invited my attention to para 3 of the said application which reads as under:- “3. The company submits that in view of the clear directives of the Supreme Court the present complaint is liable to be dismissed as not maintainable against the respondent No. 1 & 2” 5 On this application, the Industrial Court was pleased to direct that the said application filed by the petitioners herein should be heard alongwith the application for interim relief and no prejudice would be caused to respondent Nos. 1 and 2 i.e petitioners herein. Shri Cama, the learned Senior Counsel invited my attention to the averments made by respondent No.1 herein in the complaint particularly in para 3(a). He submitted that specific averment is made by respondent No.1 herein that the complainant is not seeking any reliefs against the petitioners herein being the principal employers. He invited my attention to the prayer clauses in the complaint. He submitted though in prayer clauses (c) to (i) reliefs are claimed against respondent Nos. 3 to 146, prayer clauses (a) and (b) clearly refer to respondents and do not refer to respondent Nos. 3 to 146. He submitted that it is a well settled position in law in view of the judgment of the Apex Court in the case of Vividh Kamgar Sabha vs. Kalyani Steels Ltd. & Anr. reported in 2001 I CLR 6 532 that in the event of any dispute being there regarding relationship of employer and employee, the dispute must be first adjudicated by the appropriate forum and only after it is established that the employee is a workman before the appropriate forum then the complaint can be made under the MRTU and PULP Act. He submitted that there are other judgments of the Supreme Court and this Court on the same point. He, therefore, submitted that before establishing their status as employees of the petitioners, the the complainant i.e respondent No.1 herein could not bind the petitioners – Company by seeking any relief in the said complaint either directly or indirectly. He, therefore, submitted that since the application was filed on the maintainability of the complaint qua the petitioners herein, it was the duty of the Industrial Court to first decide the application filed by the petitioners and, thereafter, to decide the interim application. He submitted, therefore, that the Industrial Court had erred in directing that 7 both these applications should be heard together. He submits that grave prejudice would be caused to the petitioners if any ad-interim order is passed in favour of respondent No.1 herein. He relied upon the judgment of the learned Single Judge of this Court in Pauni Shikshan Sanstha, Pauni & Ors vs. Sunil Rajaram Uparikar & Ors. reported in 2001 I CLR 232. Petitioners in the said case had raised a preliminary objection and had called upon the Tribunal to decide the said preliminary issue before proceeding in the matter. The Tribunal, instead of deciding preliminary issue, proceeded to allow the amendment application. The learned Single Judge in the said case held that the question of allowing the amendment would arise only if the Court has jurisdiction to try and decide the proceedings before it and, therefore, the learned Single Judge was of the view that the Tribunal ought to have addressed itself to the preliminary objection raised on behalf of the petitioners. He also relied upon the judgment of the learned Single Judge of this Court in 8 the case of Glaxo India Ltd. vs. Chemical Employees’ Union & Ors. reported in 1998 II CLR 54 5. In my view, submissions made by the learned Senior Counsel appearing on behalf of the petitioners cannot be accepted. It is a well settled position in law that if an application is filed challenging the maintainability of the application, the Court is competent to consider the application for interim relief and, thereafter, decide the question of maintainability of the application. Therefore, in my view, there is no infirmity in the order passed by the Industrial Court in rejecting the application of the petitioners herein of deciding their application regarding maintainability of the complaint. It is an admitted position that in the said application no specific prayer has been made for deleting the petitioners from the array of the parties on the ground that they are not proper and necessary parties, though an averment to that effect has been 9 made in para 3 of the said application by the petitioners herein. The submissions made by the learned Senior Counsel appearing on behalf of the petitioners regarding the question of maintainability of the complaint and on the question of deleting the petitioners from the array of the parties, can be raised by the petitioners herein before the Industrial Court. So far as the judgment in the case of Pauni Shikshan Sanstha & Ors (supra) is concerned, ratio of the said judgment would not apply to the facts of the present case because, in the said case, though an application regarding maintainability of the complaint was filed before the Tribunal, the Tribunal proceeded to consider the application for amendment. The learned Single Judge, therefore, under those circumstances, held that the application for maintainability should have been decided first. Therefore, the ratio of the said judgment would not apply to the facts of the present case. So far as the judgment in the case of Glaxo India Ltd. (Supra) is concerned, in the said case the learned Single 10 Judge was pleased to consider the power of the Court to add parties in reference in industrial dispute as regards wages, revision and other demands raised by the respondent. In the present case, the application filed by the petitioners herein is still pending and is not decided and, therefore, in my view, submissions made by the Counsel for the petitioners will have to be raised before the Industrial Court which shall decide the application on merits and in accordance with law. 6. In my view, therefore, no case is made out for interfering with the order passed by the Industrial Court. Petition is rejected. Petitioners, however, are permitted to amend their application and add an additional prayer in the application which will be in consonance with the averments made in para 3 of the application. Amendment, however, shall be carried out within two days from today and, thereafter, respondent No.1 herein is permitted to file its reply to the said amendment and, thereafter, the Industrial Court shall decide 11 both the applications simultaneously on merits and in accordance with law. All contentions raised by the parties are kept open. 7. Petition is accordingly disposed of. (V.M. KANADE, J)