1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7352 OF 2009 Municipal Council, Ausa through its Chief Officer, Tq. Ausa Dist. Latur. ..Petitioner/s Versus 1] Shaikha Khalil Khurshid Age 33 years, Occ. Nil R/o. Jamal Nagar, Ausa. Tq. Ausa, Dist. Latur. 2] Sadik Aamir Shaikh Age 37 years, Occ. Nil R/o. Indira Nagar, Ausa Tq. Ausa, Dist. Latur. 3] Ram Gopinath Kamble Age 37 years, Occ. Nil R/o. Dhangar Galli, Ausa, Tq. Ausa, Dist.Latur 4] Shahu Rama Kamble Age 36 years, Occ. Nil R/o. Mahatma Nagar, Ausa Tq. Ausa, Dist. Latur. 5] Pathan Moyoddinkha Samsherkha Age 39 years, Occ. Nil R/o. Kewalram Galli, Ausa Tq. Ausa, Dist. Latur. 6] Ekbal Abdul Hamid Karpude Age 36 years, Occ. Nil R/o. Momeen Galli, Ausa Tq. Ausa, Dist. Latur. 2 7] Ramkrishna Shashikant Apsingekar Age 34 years, Occ. Nil R/o. Kapad Galli, Ausa, Tq. Ausa, Dist. Latur. 8] Prabhakar Goroba Kamble Age 33 years, Occ. Nil R/o. Mukteshwar Road, Ausa Tq. Ausa, Dist. Latur. 9] Mehboob Rajjaq Tamboli Age 41 years, Occ. Nil R/o. In front of Jain Mandir, Ausa Tq. Ausa Dist. Latur. 10] The State of Maharashtra through its Secretary Department of Urban Development. Mantralaya, Mujbai .. Respondent/s. --- Mr. B.L. Sagar Killarikar, Advocate for petitioner. Mr. S.S. Jadhavar, Advocate for the respondent Nos. 1 to 9 Mr. K.M Suryawanshi, AGP for the respondent No.10 CORAM : R.M. BORDE, J. DATE : 28th April, 2010. ORAL JUDGMENT :- 1] Heard respective counsel appearing for the parties. Rule. With the consent of the learned counsel appearing for the parties, petition is taken up for final disposal at the admission stage. 3 2] The respondents ( hereinafter referred to as the complainants/employees) presented a complaint bearing ULP No. 31/2002 making a grievance in respect of commission of unfair labour practice under Section 28(1) read with item nos. 1(a,b,d and f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971. ( hereinafter referred to as “ the MRTU & PULP Act” for sake of brevity). The complainants contended that they are working with the petitioner Municipal Council (hereinafter referred to as the “employer”) since last several years and engaged in performing the essential services. According to the complainants they have rendered an unblemished service. However, abruptly, without any cause, their services have been terminated. The complainants contend that they were appointed by the Municipal Council/employer as a daily rated workers for a period of more than 240 days in a calender year. There is availability of work. However, inspite of availability of the work and without following the due procedure prescribed by law, their services have been terminated. The complainants therefore sought directions against the employer requiring them to desist from engaging in an unfair labour practice and also sought relief of reinstatement in the employment with continuity of service and back wages. . The complaint tendered by the complainant was opposed by the employer by presenting a written statement at Exhibit C-2_and the contentions raised by the complainants have been denied by the employer. The employer also disputed the relationship of employer and employee 4 between the complainants and the respondent. According to the employer, the respondent employees were awarded contract for carrying out specific functions. A tender notice was issued inviting the tenders for carrying out the essential functions on behalf of the municipal Council. The tender submitted by the employees/complainants was accepted and they were issued work orders for performing the prescribed job. According to the employer, the complainants are not employees engaged by the Municipal Council/employer. 3] It is contended that when the relationship of employer-employee itself is disputed, the Labour court cannot adjudicate upon the issue while entertaining the complainant under the MRTU & PULP Act. The objection raised by the respondents, however, was turned down by the labour court and the complaint tendered by the employees/complainants was allowed by the labour Court in view of the order dated 27/1/2009. The labour court, issued an order restraining the respondents from indulging in an unfair labour practice and also further directed to desist from practicing any such unfair labour practice. The complainants were directed to be reinstated with continuity of service, however, without back wages. 4] A review application was preferred by the employer bearing ULP No. 5/2009. The Industrial court, however, did not find favour with the 5 contentions raised by the employer and dismissed the review application in view of the order dated 23/9/2009. 5] I have herd the respective counsel for the parties. 6] The only question that arises for adjudication is, when the relationship of employer-employee is disputed, whether a complaint under the provisions of the MRTU & PULP Act could be entertained and as to whether the appropriate remedy for the employee, is to approach the Industrial Court and seek an adjudication on the issue under the provisions of the Industrial Disputes Act. 7] The counsel appearing for the employer/respondent has placed reliance on the judgment of the Honourable Apex Court in the matter of “Cipla Limited Vs. Maharashtra General Kamgar Union and others” reported in AIR 2001 SC 1165 and contended that , as the relationship of employer- employee has been disputed by the employer, the complaint before the Labour Court under the provisions of the MRTU & PULP Act, is not tenable. The following observations in the said judgment are relevant for the purpose of determination of the issue involved in the present petition. “But one thing is clear – if the employees are working under a contract covered by the Contract Labour (Regulation and Abolition) Act then it is clear that 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 Government to abolish the same. If the case put forth by the workmen is that they have been directly 6 employed by the appellant-company but the contract itself is a camouflage and, therefore, needs to be adjudicated is a matter which can be gone into by the appropriate industrial tribunal or labour Court. Such question cannot be examined by labour Court or the industrial court constituted under the Act. The object of the enactment is, amongst other aspects, enforcing provisions relating to unfair labour practices. If that is so, unless it is undisputed or indisputable that there is employer employee relationship between the parties, the question of unfair practice cannot be enquired into at all. The respondent union came to the Labour Court with a complaint that the workmen are engaged by the appellant through the contractor and though that is ostensible relationship the true relationship is one of master and servant between the appellant and the workmen in question. By this process, workmen repudiate their relationship with the contractor under whom they are employed but claim relationship of an employee under the appellant. That exercise of repudiation of the contract with one and establishment of a legal relationship with another can be done only in a regular industrial tribunal/court under I.D. Act.” “ Shri K.K. Singhvi, leraned senior advocate appearing for the respondent, submitted that under Section 32 of the Act the Labour Court has the power to decide all matters arising out of any application or complaint referred to it for the decision under any of the provisions of the Act.” Section 32 would not enlarge the jurisdiction of the Court beyond what is conferred upon it by other provisions of the Act. If under other provisions of the Act the industrial tribunal or the labour court has no jurisdiction to deal with a particular aspect of the matter, Section 32 does not give such power to it. In the cases at hand before us, whether a workman an be stated to be the workman 7 of the appellant establishment or not, it must be held that the contract between the appellant and the second respondent is a camouflage or bogus and upon such a decision it can be held that the workman in question is an employee of the appellant establishment. That exercise, we are afraid, would not fall within the scope of either Section 28 or Section 7 of the Act. In cases of this nature where the provisions of the Act are summary in nature and give drastic remedies to the parties concerned, elaborate consideration of the question as to relationship of employer employee cannot be gone into. If at any time the employee concerned was indisputably an employee of the establishment and subsequently it is so disputed, such a question is an incidental question arising under Section 32 of the Act. Even the case pleaded by the respondent Union itself is that the appellant establishment had never recognized the workmen mentioned in Exhibit “A” as its employees of the second respondent. If that dispute existed throughout, we think, the Labour Court or the Industrial Court under the Act is not the appropriate Court to decide such question, as held by this court in General Labour Union (Red flag) Bombay Vs. Ahmedabad Mfg. And Calico Printing Co. Ltd. (1958 Supp (1) SCC 175 (supra) which view was iterated by us in Vividh Kamgar Sabha Vs. Kalyani Steels Ltd. 2001(1) SCALE 82: (2001 AIR SCW 170). 8] Reliance is also placed on behalf of the respondents, on the judgment of the Apex Court in the matter of “Sarva Shramik Sangh Vs. Indian Smelting and Refining Co. Ltd.” reported in 2003 Law suit (SC) 1036, and more particularly, on para. Nos. 20 and 21 thereof, which read thus :- 8 “20. Inferentially, from the above, it is sought to be asserted that there is a statutory recognition in Section 59 as to the entitlement of a worker, at his union or choice to have recourse to anyone of the statutory remedies under the different Acts and therefore all and every question relating to the redressal sought including as to whether a person is an `employee' can also be decided by the Courts under the Maharashtra Act. This too general and wide assertion completely overlooks the stipulation made, “If any proceeding in respect of any matter falling within the purview of this Act is instituted” in the said provision. As to what matters fall within the purview of the Act is to be found outside Section 59 and there is no such indicator, in this regard in Section 59 itself. That was, what has been specifically, elaborately and analytically found dealt with in CIPLA's case (supra) by the learned Judges and mere non-mention of Section 59 in the judgment is no justification to contend that they were either unaware of it or that a relevant and necessary provisions which ought to have been considered has been overlooked, which if had been adverted to the result would or ought to be different from the one taken, in that case. We have carefully gone through the construction placed upon the statutory provisions noticed and conclusions drawn as to the class or category of matters which only would fall within the purview of the Maharashtra Act and necessity for any complainant to answer the description, as a condition precedent, to be or having been treated by the employer as his `employee' and the relationship of employee and employer with the employer against whom any such complaint of unfair labour practice is made and relief therefor is sought is beyond controversy and common case or accepted position and that we are in respectful agreement with 9 the same. The interpretation of the relevant provisions of the Maharashtra Act appears to be in tune with the legal sense of the words construed in the context of the statute and the jurisdiction of the authorities constituted thereunder. Such a construction paves way for avoiding uncertainty as well as possible inconsistency or expression of contradictory views when more than one group chose to avail different forums for similar kind of relief and therefore could not be said to have resulted in serious injustice, hardship or anomaly to warrant the countenance of a different view. A careful, critical and analytical scrutiny of the various provisions which consciously and conspicuously use the words employee' and `employer' in al the relevant provisions would postulate the pre-existing relationship of such employee and employer being an accepted/acceptable fact. Consequently, the question of ousting the...” “21. The common thread passing through all these judgments is that the threshold question to be decided is whether the industrial dispute could be raised for abolition of the contract labour system in view of the provisions of the Maharashtra Act. What happens to an employee engaged by the contractor if the contract made is abolished is not really involved in the dispute. There can be no quarrel with the proposition as contended by the appellants that the jurisdiction to decide a matter would essentially depend upon pleadings in the plaint. But in a case like the present one, where the fundamental fact decides the jurisdiction to entertain the complaint itself the position would be slightly different. In order t entertain a complaint under the Maharashtra Act, it has to be 10 established that the claimant was an employee of the employer against whom complaint is made, under the I.D. Act. When there is no dispute about such relationship, as noted in paragraph 9 of CIPLA's (supra) the Maharashtra Act would have full application. When that basis claim is disputed obviously the issue has to be adjudicated by the forum which is competent to adjudicate. The sine qua non for applicaton of the concept of unfair labour practice is the existence of a direct relationship of employer and employee. Until that basic question is decided the forum recedes to the background in the sense that first that question has to be got separately adjudicated. Even if it is accepted for the sake of arguments that two forums are available, the Court certainly can say which is the more appropriate forum to effectively get it adjudicated and that is what has been precisely said in the three decisions. Once the existence of contractor is accepted, it leads to an inevitable conclusion that a relationship exists between the contractor and the complainant. According to them, the contract was a facade and sham one which has no real effectiveness. As rightly observed in CIPLA's case (supra), it is relationship existing by contractual arrangement, which is sought to be abandoned and negated and in its place the complainant's clam is to the effect that there was in reality a relationship between the employer and the complainant directly. It is the establishment of the existence of such an arrangement which decides the jurisdiction. That being the position, CIPLA's case (supra) rightly held that an industrial dispute has to be raised before the Tribunal under the I.d. Act to have the issue relating to actual nature of employment sort out. That being the position, we find that there is no scope for re-considering 11 CIPLA's case (supra), the view which really echoed the one taken about almost a decade back.'” 9] Relying upon these observations in the judgment it is contended that as the relationship with the respondents itself is disputed by the employer, the industrial dispute, as raised before the industrial Court under the Industrial Dispute Act, relating to the nature of the employment needs to be decided. Unless such question is answered by the competent Industrial court, under the Industrial Disputes Act, the complaint under the provisions of the MRTU and PULP Act would not be tenable. 10] Counsel for the respondents/employees/original complainants contend that initially the respondents have accepted the work on contract basis. On issuance of tender notices inviting the parties to perform the functions as specified in the notice was accepted. However, it is contended that the initial entry in the employment is on the basis of the terms of the contract and same was for a limited duration. After completion of the said period covered by the notice, the employees were in fact, considered as employees of the council. They were paid the wages by the municipal council and notices were issued by the Chief Officer in respect of performance of work. The material placed on record, according to the counsel, goes to establish that the respondents are, in fact, employees of the Municipal Council. It does appear from the observations made by the labour Court as well as the industrial court in the judgment that after lapse of a 12 limited period, the employees were under the control of the Municipal Council, they were assigned the duties for performing functions of holding elections and they were also subjected to control by the Chief Officer of the Municipal Council. It further transpires that the orders in respect of assigning works for a specified work was issued by the Chief Officer, from time to time. However, that itself will not invest the jurisdiction with the labour court in dealing with the complaint under the MRTU and PULP Act, to determine the issue. It cannot be controverted that the entry in establishment of the respondents/complainants is on the basis of contract issued in their favour. It may be for a limited period. However, it is contention of the petitioner/employer that the respondents/employees are engaged on contract basis and are not direct employees of the Municipal Council. The dispute so raised has to be adjudicated under the provisions of the Industrial disputes Act. 11] The forum prescribed under the Industrial Disputes Act for considering the issue has to take into into account the rival contentions raised by the parties. No definite opinion in this regard can be formed and the finding cannot be recorded by the court dealing with the complaint under the MRTU & PULP Act. The contentions of the employees that contract itself is camouflaged and, therefore, needs to be adjudicated, is a matter which can be gone into by the appropriate Industrial Tribunal or the Labour Court. Such question cannot be examined by the labour court or the Industrial court, under the MRTU & PULP Act. 13 12] The Labour Court as well as the Industrial Court did not deal with this issue in its proper perspective and assumed jurisdiction and proceeded to decide the matter. It would not be appropriate to make any comment as regard the merits of the contentions raised by the parties. It would be open for the employees/respondents herein, to contend before the appropriate forum that the contentions raised by the employer in respect of issuance of tender notices and engagement of the respondents/employees on contract basis is itself is a camouflage and pretext to avoid the liability under the provisions of the MRTU & PULP Act. Such issue, however, has to be adjudicated and decided by the appropriate forum empowered to deal with the issue. It would be open for the respondents/employees to put forth all the contentions before the appropriate forum and secure adjudication on the issue in respect of their relationship with the employer. Considering the legal position, as set out in the judgment of the Apex Court, cited supra, I am of the view that the judgments delivered by the courts below need to be quashed and set aside. 13] The writ petition is accordingly allowed. The judgment and order passed by the Labour Court, dated 27/1/2009, so also the judgment and order passed by the the Industrial court dated 23/9/2009, confirming the said judgment & order, are quashed and set aside. It would be open for the respondents/employees/original complainants to present appropriate 14 proceedings before the appropriate forum under the Industrial Dispute Act, for securing appropriate relief. . As stated above, the Industrial Tribunal would have the power and authority to render a decision on the issue. The observations made in this judgment, so also, the judgments of the courts below would not be an impediment in dealing with the issue afresh, by the appropriate forum, in accordance with law. The learned counsel appearing for the parties requested for issuance of directions for rendering decision by the appropriate forum on the issue expeditiously. The respondents/employees may present a complaint/application within 3 months from today and if such an application is presented, the appropriate forum shall deal with the issue and render decision in the matter, as expeditiously as possible and preferably, by the end of the year 2010. Rule made absolute in above terms with no orders as to costs. [R.M. BORDE,J.] Grt/-