1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1740 OF 2005 M/s. Hindustan Lever Ltd. ..Petitioner versus Contract Laghu Udyog Kamgar Union, Malad, Mumbai & Ors. ..Respondents. Mr.P.K. Rele, Senior Counsel with Mr.Piyush Shah for the Petitioner. Mr.Sanjay Singhvi with Ms.Jane Cox with Mr.Bennet D’Costa for Respondent no.1. Mr.Kiran Bapat for Respondent no.2. None for Respondent nos.3, 4 and 6. Mr.C.U. Singh, Senior Counsel with Mr.R.N. Shah with Mr.Mahesh Londhe i/b.M/s. Sanjay Udeshi & Co. for Respondent nos.5 and 7. WITH WRIT PETITION NO.1777 OF 2005 Perpetual Industrial Services ..Petitioners. Versus Contract Laghu Udyog Kamgar Union & Ors. ..Respondents. 2 WITH WRIT PETITION NO.1778 OF 2005 M/s.Neeta Caterers, Mumbai ..Petitioners. Versus Contract Laghu Udyog Kamgar Union & Ors. ..Respondents. Appearance in W.P. No.1777/05 and 1778/05 : Mr.C.U. Singh, Senior Counsel with Mr.R.N. Shah with Mr.Mahesh Londhe i/b. M/s.Sanjay Udeshi & Co. for the Petitioners. Mr.Sanjay Singhvi, counsel with Ms.Jane Cox and Mr.Beneet D’costa for Respondent no.1. Mr.Kiran Bapat for Respondent no.2. Mr.P.K. Rele, Senior Counsel with Mr.Piyush Shah for Respondent no.3. None for Respondent nos.4 to 10. CORAM : S.J. VAZIFDAR, J. DATE OF RESERVING THE JUDGMENT : 3RD MARCH 2009 DATE OF PRONOUCING THE JUDGMENT: 17TH JUNE, 2009 3 ORAL JUDGMENT : 1. The Petitioners have challenged an award of the Industrial Tribunal dated 21.3.2005 made in Reference (IT) No.64 of 2003. The Petitioners in Writ Petition Nos. 1777 of 2005 and 1778 of 2005 are Respondent nos.5 and 7 in Writ Petition No.1740 of 2005 and have challenged the award in so far as it relates to them. I will therefore refer to the parties as they are arrayed in Writ Petition No. 1740 of 2005. 2. Respondent no.2 - The Hindustan Lever Research Centre Employees’ Union is another registered union. According to the Petitioner, Respondent nos.3 to 9 were/are contractors through whom services in certain non-core activities, which I will refer to later, had been sourced from time to time by the Petitioner. According to the said Unions and the workers however, the workers were employed by the Petitioner and not the said contractors and the contracts between the Petitioner and each of Respondent nos.3 to 9 are sham and bogus. The said award declares the workmen, allegedly engaged by these contractors, to be the Petitioner’s 4 employees and that they are entitled to all permanency benefits including wages and other allowances since the inception of their services. 3. At the outset, I must state that Mr. P.K. Rele, the learned senior counsel appearing on behalf of the Petitioner and Mr. C.U. Singh, the learned Senior counsel appearing on behalf of Respondent nos.5 and 7 contended that the said award has not considered the material on record as well as certain issues of vital importance. They submitted therefore that the award ought to be set aside and that the matter be remanded to the Industrial Tribunal for a fresh hearing and adjudication. 4. I will presume that the award does not deal with certain important aspects of the matter pertaining to facts as well as of law. Despite the same, I decided not to remit the matter but to hear the parties on merits which I did at considerable length. I have done so as I found that in the facts and circumstances of this case, to remand the matter would work enormous prejudice to the interest of both the parties in every respect in view of the present 5 matter having already been argued five times over a period of almost twenty five years. The arduous course of this litigation is apparent from the following brief facts :- (a). Initially, an application had been made to the Contract Labour Board on 26.12.1985 for abolition of contract labour in respect of each of the alleged contracts. (b)(i). On 30.12.1985 Respondent no.1 filed Complaint (ULP) No.1086 of 1985 before the Industrial Court against the Petitioner and Respondent nos.3 to 9 inter-alia for an order directing the Respondents therein to cease to engage in unfair labour practices, not to terminate the services of the workmen or to punish them or to terminate, transfer or in any other way, adversely affect the service conditions of the said workmen. Respondent no.1 also sought an order directing the Petitioner to classify the said workmen as permanent, with retrospective effect and to grant them wages, status and privileges of other permanent employees together with the arrears. (ii). An ad-interim order directing the parties to maintain status-quo, was passed on the same day i.e. 6 30.12.1985. By an order dated 11.6.1986, the ad-interim order was vacated and the application for interim reliefs taken out by Respondent no.1 was rejected. (iii). Respondent no.1 challenged this order by filing Writ Petition No.1535 of 1986. The Writ Petition was admitted by an order dated 1.7.1986. (iv), Alleging that certain security guards who were a part of the concerned workmen, had been informed that the contractor had been changed and that their services were terminated Respondent no.1 filed an application in Writ Petition No.1394 of 1986 for interim reliefs. By an order dated 23.7.1986 this Court directed the concerned Respondents to maintain status-quo till the disposal of the Complaint and for one month thereafter. (v). On 4.12.1986 the first Respondent filed another application for interim reliefs in the said Complaint (ULP) No.1086 of 1985, inter-alia for an order directing the Respondents to reinstate the security watchmen and/or to pay them wages. (vi). By an order dated 31.8.1989 this application for interim reliefs was rejected. 7 (vii) By an order dated 31.8.1989 the said Complaint (ULP) No.1086 of 1985 was itself also rejected. (c) (i). Respondent no.1 filed Writ Petition No.2916 of 1990 inter-alia challenging the order dated 31.8.1989 rejecting the said Complaint. (ii). By an order and judgment dated 23.6.1994, (Contract Laghu Udyog Kamgar Union versus K.K. Desai & Ors. (1994) II CLRA 537) the Writ Petition except in respect of the security guards was allowed. (d) (i). The Petitioner filed Appeal No.537 of 1994 challenging the said order and judgment dated 23.6.1994 in Writ Petition No.2916 of 1990. Respondent no.1 filed cross-objections in respect of the security guards. (ii). A Division Bench of this Court by an order and judgment dated 6.3.2009 relying upon the judgments of the Supreme Court in Vividh Kamgar Sangh v. Kalyani Steels Ltd. & Anr. (2001) 1 CLRA, 532 and Cipla Ltd. v. Maharashtra General Kamgar Union & Ors. (2001) 1 CLRA, 752 held that the Complaint filed by Respondent no.1 was not maintainable and therefore set aside the order of the learned Single Judge dated 23.6.1994. The Division Bench 8 however, in the light of the said judgments of the Apex Court, directed the State Government to refer the disputes raised by Respondent no.1 to the Industrial Court for adjudication within eight weeks. The Division Bench recorded that the parties had agreed that the Complaint filed by Respondent no.1 shall be treated as the statement of claim and the written statement to the Complaint shall be treated as the affidavit in reply/written statement to the statement of claim. The Division Bench also recorded that the parties had agreed that the evidence led by them in the Complaint shall be read as evidence in the reference and that it would be open for the parties to lead further evidence. All the contentions of the parties were kept open before the Industrial Tribunal. The State Government was also directed to decide the application filed by Respondent no.1 for abolition of contract labour within six months. (iii). By an order dated 27.9.2004 Civil Appeal No. 6365 of 2004 (from SLP No.15723 of 2004) filed by the Petitioner against the order dated 6.3.2003 was 9 dismissed. (e). In the meantime on 2.7.2003 the order of reference as directed by the order of the Division Bench dated 6.3.2003 was made. (f). Thereafter, the parties led extensive further evidence in the reference. (g). The impugned award was passed on 23.3.2005. 5. The parties have obviously spent enormous time, energy and resources, monetary and otherwise, in prosecuting this litigation for almost twenty five years. It would be unfair and unreasonable in the extreme to prolong this litigation any more than necessary which is precisely what an order of remand will do. I believe therefore that it is not only fair and just but essential that this Court ought to hear and decide the matter on merits though it is not bound to in exercise of its Writ jurisdiction. 6. I will deal with each of the contracts separately. However, as certain submissions raised on behalf of the parties apply to all the contracts, I will deal with them first, before dealing with each of the contracts separately. 7. Relying upon the judgment of the Supreme Court 10 in the case of Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of Tamil Nadu, (2004) 3 Supreme Court Cases, 514. Mr.Rele and Mr.C.U. Singh submitted that the burden of proving the existence of an employer-employee relationship is on the employer. 8. I have proceeded on this basis. I must clarify however that the burden does not depend upon either the employer or the employee in every case. It would depend upon the party who seeks to establish the relationship. In the present case, it is the Union and the workmen who seek to establish that it is the Petitioner and not the respective contractors who is their employer. In the circumstances, the burden in the present case is on the workmen/union to establish the existence of an employer- employee relationship between the Petitioner and the workmen. 9. Having said so, it is important to note two things. Firstly once the parties have produced their evidence the question on whom the onus initially lay ceases to be of importance. In such cases the Court would be entitled to draw such inference on the basis of the evidence both oral 11 and documentary adduced by the parties. 10(A). In Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31, it was contended on behalf of the Defendant – Appellant that even if the Plaintiffs may in their individual capacity as members of the community maintain the suit with a view to dislodge the Defendants from their office as trustees, the onus was on the Plaintiff and not on the Defendant who had not come to Court for a declaration of title to prove that the Defendants have no title as trustees. The Constitution Bench of the Supreme Court rejecting the contention held:- “ The question of burden of proof at the end of the case when both the parties have adduced their evidence is not of very great importance and the Court has to come to a decision on a consideration of all the materials”. (B). In Raghupathi v. Raju Ramappa Shetty, 1991 (Supp) (2) SCC 267, the Supreme Court held that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out, the question of 12 burden of proof loses significance and remains only academic. (C). In Kalwa Devadattam v. Union of India, (1964) 3 SCR 191, the Supreme Court held as under :- “11. About the title of the plaintiffs to Items 46 to 51 in the schedule annexed to the plaint, the High Court disagreed with the trial court. These properties were purchased in the names of two of the three plaintiffs by the sale deed Est. A-230 dated March 15,1944. The consideration of the sale deed was Rs 23,500 of which Rs 5019 had been paid in advance in four instalments before March 15, 1944, and the balance of Rs 18, 481 was paid before the Sub-Registrar to the vendors who conveyed the properties to Devadattam and Devarayulu two of the three plaintiffs acting by their mother Narayanamma as their guardian. The properties having been purchased in the names of the two plaintiffs the burden prima facie lay upon the Taxing authorities to establish that the sale deed was taken and on behalf of the joint family or with the aid of joint family funds. Evidence was led by both the sides to support their respective versions. The trial court held that the plaintiffs’ case that their grandmother Seshamma provided the consideration was not proved, but there was also no evidence to show that the consideration was provided by the joint family, and as the burden of proof lay upon the Union, their case must fail. the High Court however held that the burden which lay upon the Union to prove that the properties were purchased out of the joint 13 family funds was duly discharged. The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue; abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties." (emphasis supplied) (D). It is only if the Tribunal or the Court feels it cannot make up its mind as to which of the version is true, it will be held that the party on whom the burden lies has not discharged the burden, (See Kumbhan Lakshmanna & Ors. v. Tangirala Venkateswarlu & Ors.)AIR (36) 1949 Privy Council, 278.) 11. This being a civil litigation, the inference would naturally be on the basis of the balance of probability. 12. Secondly, considering the manner in which this matter has proceeded and the failure if not refusal especially on the part of the Petitioner and the contractors to produce the evidence which was in their custody and to their knowledge, it is important to note the following 14 observations of the Supreme Court in Gopal Krishnaji Ketkar v. Mohamed Haji Latif, (1968) 2 SCR 862 :- “5……………………………………………………… …………In the course of his evidence the appellant admitted that he was enjoying the income of Plot No. 134 but he did not produce any accounts to substantiate his contention. He also admitted that “he had got record of the Dargah income and that account was kept separately”. But the appellant has not produced either his own accounts or the account of the Dargah to show as to how the income from Plot No. 134 was dealt with. Mr Gokhale, however, argued that it was no part of the appellant’s duty to produce the accounts unless he was called upon to do so and the onus was upon the respondents to prove the case and to show that the Dargah was the owner of Plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manickavasaka Pandara Lord Shaw observed as follows: “A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the 15 onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough — they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in Their Lordships’ opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.” This passage was cited with approval by this Court in a recent decision—Biltu Ram v. Jainandan Prasad . In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desraj Ranjit Singh: “But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.” But Shah, J., speaking for the Court, stated: “The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference 16 against a party withholding evidence in his possession. Such a rule is inconsistent with Illustration (g) of Section 114 of the Evidence Act, and also an impressive body of authority.” 13. Mr.Rele and Mr.C.U. Singh submitted that there was no pleading to the effect that the contracts between the Petitioner and each of the contractors was sham and bogus. They submitted that the only case pleaded in the Complaint and in the reference was that the work in each case was of a perennial nature and on that count alone, there existed a employer-employee relationship between the Petitioner and the workmen. Mr. Rele relied upon paragraphs 32 and 33 of the judgment of the Supreme Court in Shankar Chakravarti v. Britannia Biscuit Company Ltd., (1979) 3 Supreme Court Cases, 371, which read as under :- 32. If such be the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The quasi-judicial tribunal is not required to advise the party either about its rights or what it should do or 17 omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well-settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would be tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet. This view expressed in Tin Printers (Private) Ltd. v. Industrial Tribunal, (1967) 2 LLJ, 677, commends to us. The rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary. 33. Can it for a moment be suggested that this elementary principle does not inform industrial adjudication? The answer must be an emphatic “no”. (emphasis supplied) 18 14. The submission is not well founded. The judgment of the Supreme Court does not apply to the facts of the present case. The error lies in referring to stray sentences in the Complaint/reference instead of reading it as a whole. 15. It is important to note firstly that the Supreme Court has held that in such cases the pleadings are not to be read strictly. It is sufficient if the pleadings are such as to give sufficient notice to the other party of the case it is called upon to meet. In the present case, the pleadings meet this test. 16. Mr. Rele relied upon the averments in paragraph 3(c) of the Complaint that the work done by the workmen is incidental to and necessary for the work ; that it is carried out by the Petitioner undertaking as a whole and that it is of a perennial nature. 17. The Complaint however must be read as a whole. The Complaint read as a whole, certainly pleads the case that each of the contracts is sham and bogus and that the workmen were in fact the Petitioners employees. (a). Throughout the Complaint, it is averred that the 19 contractors were only “alleged contractors and in- between men in order to deprive some 70 employees of Respondent no.1 (Petitioner) of the wages, benefits, status and privileges of the remaining employees”. It is also averred that in order to so deprive the workmen, Respondent no.1 (Petitioner) had maneuvered and contrived to induct Respondent nos.2 to 8 therein i.e. Respondent nos.3 to 9 herein “in the guise of contractors”. (b). In paragraph 3(p) of the Complaint, the contents of the letter dated 26.12.1985 to the Contract Labour Board were incorporated by stating that the same be treated as a part of the Complaint. This letter dated 26.12.1985, in turn, expressly refers to the workmen as “so called contract workers”. It further states :- “According to us, all the workmen are actually permanent and regular employees of HLRC (Petitioner).............” The averments in the Complaint clearly plead a case that the contracts were sham and bogus and that the workmen were in fact the employees of the Petitioner and 20 not of the respective contractors. (c). There is nothing in the Complaint which indicates that the basis of the entire case was that the workmen were the employees of the Petitioner only because the work done by them was of a perennial nature. 18. Further considering the manner in which this matter has progressed, especially the oral evidence led and the documentary evidence produced, leaves no room for doubt that the parties were conscious that the case of the union throughout was that the contracts were sham and bogus. This will be clear when I refer to the evidence, both oral and documentary, while dealing with each of the contractors. Suffice it to state that the effort of the Petitioner as is evident from the examination-in-chief of its witnesses, the cross-examination on behalf of the Petitioner of the witnesses of the union and the documentary evidence produced by the Petitioner, indicates without a shadow of doubt, that the Petitioner itself was not only aware of, but proceeded on the basis that the case of the union was that the contracts were sham and bogus. It was to meet this case that the 21 Petitioner lead oral and produced documentary evidence and cross-examined the witnesses produced by the union. 19. Faced with this, Mr. Rele and Mr. C.U. Singh submitted that the ingredients necessary for establishing that the workmen were employees of the Petitioner, were not pleaded. 20. It was not necessary to do so. Once it is found that the