1 W.P.No.671.99 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 671 OF 1999 Sarva Shramik Sanghatana, Pune ... Petitioner v/s M/s.Cummins Diesel Sales & service (I) Ltd. & ors. ... Respondents Ms Seema Sarnaik for the petitioner. Mr.D.J.Bhanage and Mr.Anupam Surve i/by M/s.Haresh Mehta & Co. for Respondent Nos.1 and 2. Mr.P.G.Sawant, ‘’B’’ Panel advocate for the State. CORAM: SMT.NISHITA MHATRE, J. RESERVED ON : 30.11.2010. PRONOUNCED ON : 10.01.2011 ORAL JUDGMENT: 1. The petition has been filed by a Trade Union which claims to represent the workmen employed by respondent No.1. A complaint was filed by the petitioner contending that respondent Nos.1 and 2 were engaged in unfair labour practices under Items 5, 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and 2 W.P.No.671.99 Prevention of Unfair Labour Practices Act, 1971 (in short, ‘’the M.R.T.U. & P.U.L.P. Act’’) in respect of the employees mentioned in Annexure-A to the complaint. According to the petitioner, the employees who were their members, were continued in service for years together by the respondents on a temporary basis in order to deprive them of their status and benefits of permanency. They contended that the workmen had completed 240 days in service. According to the petitioner, these employees mentioned in Annexure-A to the complaint were mainly working in the Service Centre and the Cleaning Department directly under the control and supervision of the respondent Company. The petitioner also contended that, in view of the Model Standing Orders, which governed the service conditions of the employees of the respondent Company, the workmen were entitled to permanency on completion of 240 days in service. The respondents had breached those Standing Orders and, therefore, had committed an unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, contended the petitioner. 2. The respondent Company filed its written statement contending that it was not the employer of these workmen but that they were employed through two contractors, namely, respondent Nos.3 and 4 to carry out certain jobs of 3 W.P.No.671.99 the Company. It also raised the issue of maintainability of the complaint on the ground that when an employer disputes the master and servant relationship between itself and the concerned workmen, a complaint under the M.R.T.U. & P.U.L.P. Act is not maintainable. The respondent Company had pressed into service the judgment of the Supreme Court in the case of Central Labour Union (Red Flag) Bombay v/s Ahmedabad Mfg. & Calico Printing Co. Ltd. & ors., reported in 1995 II L.L.J. 765. 3. On the basis of the contentions raised in the written statement, the petitioner union sought an amendment of the complaint and impleaded respondent Nos.3 and 4 i.e. the contractors, as party respondents to the complaint. 4. The Industrial Court has dismissed the complaint on merits as it was of the view that the petitioner had not been able to establish any unfair labour practice on the part of the respondents. The Industrial Court held that the workmen were not employees of the respondent Company but of the contractors i.e. respondent Nos.3 and 4 herein. As regards the jurisdiction of the Court, the Industrial Court held that the complaint was maintainable under the M.R.T.U. & P.U.L.P. Act. On merits, the Industrial Court concluded that no unfair labour practice had been established on the part of 4 W.P.No.671.99 the respondent Company and the complaint was dismissed. Aggrieved by the decision, the petitioner Union has filed the present petition. 5. Mr.Bhanage, the learned advocate appearing for the respondent Company raised a preliminary objection contending that in view of the judgments of the Supreme Court in the cases of (1) Cipla Ltd. v/s Maharashtra General Kamgar Union & ors., reported in A.I.R. 2001 SC 1165, and (2) Vividh Kamgar Sangathana v/s Kalyani Steel Ltd., reported in 2001 1 C.L.R. 532, the complaint itself was not maintainable. He submitted that this Court ought not to go into the merits of the matter as the Industrial Court had committed an error by concluding that the complaint was maintainable. Mr.Bhanage has relied on the judgments passed by this Court in the cases of (i) Nashik Workers Union v/s Mahindra & Mahindra Ltd., Nashik, reported in 2007 III C.L.R. 635, (ii) Writ Petition No.7553 of 2000 between Kirloskar Mahle Filter Systems Ltd. v/s chandrakant Tukaram Ubhe & ors., decided on 12.9.2007, (iii) Mahindra & Mahiindra Ltd. v/s General Employees’ Union & ors., reported in 2006 III C.L.R. 73, (iv) ICICI Bank Ltd. v/s Narendra R. parmar & ors., reported in 2006 II C.L.R. 815, (v) Maharashtra Engineering Plastic & General Kamgar Union v/s Little 5 W.P.No.671.99 Kids & ors., reported in 2005 I C.L.R. 658, (vi) Quadricon Pvt. Ltd. & ors. v/s Maxi D’Souza & ors., reported in 2004 III C.L.R. 530, (vii) Indian Seamless Metal Tubes Ltd. v/s Sunil Rambhau Iwale & ors., reported in 2001 III C.L.R. 728, and (viii) Hindustan Coca Cola bottling S/W Pvt. Ltd. v/s Bhartiya Kamgar Sena & ors., reported in 2001 III C.L.R. 1025. These judgements have been cited to fortify his submission that the Industrial Court could not have entertained the complaint when the existence of the employer employee relationship between Respondent Nos.1 and 2 on the one hand and the workmen whose names were mentioned in the annexure to the complaint was denied by the former. He pointed out that the relationship was neither undisputed nor indubitable as Respondent Nos1 and 2 had denied the existence of such a relationship and had pleaded that the workmen were employed by contractors who were engaged by the aforesaid Respondents for providing certain services to them. 6. Ms Sarnaik appearing for the petitioner Union submitted that when the Industrial Court has found that the complaint is maintainable but has dismissed the same on merits, it would be open for this Court to consider the merits of the petitioner’s case. She submitted that the aforesaid judgments would have no application in the present situation 6 W.P.No.671.99 since the Industrial Court had dealt with the matter on merits. Ms Sarnaik has attempted to distinguish these judgments by contending that once the Industrial Court has arrived at the conclusion that the complaint is maintainable and the employer has not chosen to challenge this finding, it attains finality. She therefore urged that the merits of the petitioner’s case should be considered while disposing of this writ petition. She has relied on the judgement of a learned single judge of this Court in the case of Akhil Bhartiya Shramik Kamgar Union v/s Buildtech Constructions & ors., reported in 2004(3) Mh.L.J. 142. 7. In my opinion, the submission of Mr.Bhanage is correct. There is no need for me to consider the merits of the petitioner’s case in view of the judgments in the case of Cipla Ltd. (supra) and Kalyani (supra). It has been held by the Supreme Court that the Industrial Court must consider whether on the basis of the pleadings on record the complainant has established indisputably that there was an employer and employee relationship between the Company and the workmen. 8. It is true that the respondent company has not challenged the finding of the Industrial Court that the complaint is maintainable. But I cannot ignore the judgments 7 W.P.No.671.99 of the Supreme Court in Cipla Ltd. (supra) and Kalyani (supra) which have been followed by this Court in the aforesaid cases while deciding this petition. These judgements leave no room for doubt that the present complaint is not maintainable. In Akhil Bhartiya Shramik Kamgar Union (supra) it has been held that the Industrial Court must consider the pleadings on record and ascertain whether the objection raised to the maintainability of the complaint is bonafide. While doing so it must consider annexures if any to the complaint and the written statement and any other material produced along with the pleadings. The only annexure to the complaint was a list of the names of the workmen on whose behalf the complaint had been filed under Schedule IV of the M.R.T.U. and P.U.L.P. Act. The Respondent Nos 1 and 2 had annexed to their written statement a copy of the Certificate of Registration issued by the Government of Maharashtra under s.7(2) of the Contract Labour (Regulation and Abolition) Act 1970, bearing the names of certain firms who the Respondents Nos1 and 2 claimed were their contractors and through whom the workmen concerned in the complaint had been employed. There were certain other documents which were annexed to the written statement, all of which prima facie appeared to indicate that the workmen were employed through contractors. In fact, when the respondent Company raised 8 W.P.No.671.99 an objection regarding the maintainability of the complaint on the ground that these workmen were employed through their contractors, the Union chose to join the contractors as party respondents to the complaint although they have denied the existence of the contractors while amending the complaint. Thus the dispute regarding the employer and employee relationship existed at the threshold itself. The pleadings do not disclose that the employer employee relationship was undisputed or that the Respondent Nos. 1and 2 had acknowledged this relationship at an earlier point of time. 9. It would be open for the petitioner to agitate its grievance about the concerned workmen by approaching the proper forum. In the event the petitioner does espouse the cause of the workmen regarding their employment with the respondent Nos.1 and 2 and their status as permanent workmen before the appropriate forum, the observations of the Industrial Court in the impugned order will not be binding on the adjudicator who decides those proceedings. 10. Writ petition is therefore dismissed. 11. Rule discharged. No costs. ..... 9 W.P.No.671.99 10 W.P.No.671.99