:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.562 OF 2007 Indian Hotels Co. Ltd. .. Petitioner. Vs. Shramik General Kamgar Union and Others .. Respondents. Mr.C.U.Singh i/b Mulla & Mulla for the petitioner. Mr.Rahul Nerlekar for respondent no.1. Mr.Farhan Dubash i/b Mr.H.Joshi for respondent no.2. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 11TH JULY, 2007. DATED : 11TH JULY, 2007. DATED : 11TH JULY, 2007. P.C.: P.C.: P.C.: . Heard Mr.C.U.Singh, learned senior counsel for the petitioner and Mr.Nerlekar, learned counsel for respondent no.1 and Mr.Dubash, learned counsel for respondent no.2. 2. By this writ petition under Article 226 of the Constitution of India the petitioner seeks to challenge a judgment and order dated 14.7.2006 passed by the Industrial Court, dismissing the application at Exhibit.CB-4 in complaint (ULP) No.1009 of 1994. By this application the petitioner had prayed for dismissal of the complaint as not maintainable on the ground that there is no employer-employee relationship between the petitioner and the workmen represented by the respondent-union. :2: :2: :2: 3. Mr.Singh, learned senior counsel for the petitioner assailed the impugned judgment mainly on the ground that the Industrial Court completely ignored and overlooked a well established legal position as declared by the Supreme Court as well as by this court that in absence of a relationship of an employer and employee the Industrial Court does not have jurisdiction to entertain a complaint of unfair labour practice under the provisions of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices, 1971 (for short "MRTU & PULP" Act). Mr.Singh in support of this contention, at the outset, invited my attention to the complaint (ULP) No.NP-1424/93, which was instituted earlier to the present complaint, bearing (ULP) No.1009 of 1994, by five elected representatives of the workmen. He submitted, in that complaint the complainant’s have clearly stated that they are the employees of M/s.Taj Trade and Transport Co. Ltd., respondent no.2 herein. He further invited my attention to the present complaint [(ULP) No.1009 of 1994] and more particularly paragraph (3)(B) thereof, wherein the respondent-union has made a categoric statement that "the complainants craves leave to refer and rely on complaint (ULP) No.1424/93 as a part and parcel of the present complaint". He then submitted that the :3: :3: :3: petitioner has filed an affidavit dated 25.1.1995, clearly denying that there is an employer-employee relationship between the petitioner and the concerned workmen at Annexure ‘A’ to the present complaint. It is against the backdrop of the aforesaid admissions given by the workmen that they are the employees of respondent no.2-company, Mr.Singh, submitted that there is no employer-employee relationship between the petitioner and the concerned workmen and hence the complaint is not maintainable and liable to be dismissed on that ground alone. He further submitted that in view of the well settled position in law that the complaint of unfair labour practise is not maintainable against an employer unless there is undisputed and indisputable employer-employee relationship between the said employer and the complainant-workmen. In support of his contentions, Mr.Singh relied upon the judgment of the Supreme Court in Sarva Shramik Sang V. Indian Smelting & Sarva Shramik Sang V. Indian Smelting & Sarva Shramik Sang V. Indian Smelting & Refining Co. Ltd. & Ors. (2003) 10 SCC 455 as also Refining Co. Ltd. & Ors. (2003) 10 SCC 455 as also Refining Co. Ltd. & Ors. (2003) 10 SCC 455 as also the judgment of this court in Mahindra & Mahindra the judgment of this court in Mahindra & Mahindra the judgment of this court in Mahindra & Mahindra Ltd. V. General Employees’ Union & Ors. 2006 III Ltd. V. General Employees’ Union & Ors. 2006 III Ltd. V. General Employees’ Union & Ors. 2006 III CLR 73 and the judgment of the Division Bench of this CLR 73 and the judgment of the Division Bench of this CLR 73 and the judgment of the Division Bench of this court in Hindustan Coca Cola Bottle s/w Pvt. Ltd. court in Hindustan Coca Cola Bottle s/w Pvt. Ltd. court in Hindustan Coca Cola Bottle s/w Pvt. Ltd. V. Bhartiya Kamgar Sena & Ors. V. Bhartiya Kamgar Sena & Ors. V. Bhartiya Kamgar Sena & Ors. 4. On the other hand Mr.Nerlekar, learned :4: :4: :4: counsel for respondent no.1 submitted that the impugned order is well reasoned order and no interference is called for in the extraordinary jurisdiction of this court under Article 226 of the Constitution of India. He further submitted that all the cases relied upon by the petitioner before the court below as well as this court are in respect of contractors employees filing cases against the principal employer and claiming to be the workmen of the principal employer, and, therefore, these judgments have no application to the facts of the present case. In the present case, he submitted that admittedly all the concerned employees are in the employment of respondent no.2 - company and hence the complaint is clearly maintainable. He further submitted that one of the issues arising in the complaint is whether there is functional integrality between respondent no.2 - company and the petitioner-company. Once the complaint is held to be maintainable, he submitted, the issue of functional integrality is an incidental issue arising in the said complaint and can be tried under section 32 of the Act. He submitted that issue of functional integrality can be tried and dealt with by the Industrial Court under the Act. In support of this contention he placed reliance upon the judgment of the Apex Court in S.G.Chemicals and Dyes Trading S.G.Chemicals and Dyes Trading S.G.Chemicals and Dyes Trading :5: :5: :5: Employees Union And S.G.Chemicals and Dyes Trading Employees Union And S.G.Chemicals and Dyes Trading Employees Union And S.G.Chemicals and Dyes Trading Ltd. and Anr. I L.L.J. 490 Ltd. and Anr. I L.L.J. 490 Ltd. and Anr. I L.L.J. 490. He then submitted that the petitioner and all other respondents are necessary parties and in their absence no decree can be passed by the court. In support of this submission he placed reliance upon the judgment of the Supreme Court in Kasturi Vs. Iyyamperumal and Kasturi Vs. Iyyamperumal and Kasturi Vs. Iyyamperumal and Others (2005) 6 SCC 733. Others (2005) 6 SCC 733. Others (2005) 6 SCC 733. 5. In the complaint respondent no.1 - Union is seeking declaration that all the respondents including the petitioner have engaged in unfair labour practise under item 1(a), (b) and (6) of Schedule II and items 3, 9 and 10 of Schedule IV of the Act and further seeking directions to forthwith lift the illegal lock out and allow the workmen whose names are mentioned in Annexure ‘A’ to the complaint to report on duty. They have also made other incidental prayers in the complaint. The application seeking dismissal of the complaint as not maintainable was filed only by the petitioner-company, who is respondent no.3 in the complaint. From perusal of the application at Exhibit.CB-4 dated 19.1.2006 filed by the petitioner show that they have prayed for dismissal of the complaint for want of jurisdiction in toto. Though this application is filed by the petitioner alone it :6: :6: :6: is pertinent to note that they have not prayed for dismissal of the complaint for want of jurisdiction only against it. It may be noticed that in the points to be urged and more particularly point no.(e) therein the petitioner has prayed for dismissal of the complaint in respect of all the respondents, except M/s.Taj Trade & Transport Co. Ltd., who is respondent no.2 in the petition and respondent no.1 in the complaint. Such fluctuating stand of the petitioner supports the contention of respondent no.2 that there is functional integrality between respondent no.2 and the petitioner-company. 6. The Industrial Court while dealing with the application filed by the petitioner framed and addressed the following issue: . Whether the complaint is maintainable in view of Apex Court ruling in the case of Kalyani Steel and Cipla Ltd. Reported in 2001 I LLR 187 and 2001 I CLR page 754 respectively ?" . While rejecting the application in paragraphs 6 and 7 the Industrial Court held thus: "6. A careful reading of the written statement filed by respondent no.3 clearly speaks that the employees are the employees of respondent no.1, though it is pleaded, that the other respondents have been mis-joined in the complaint. Notably respondent no.3 in its affidavit cum reply Exh.C-3 has come with a case that the employees represented by the complainant are the employees of respondent no.1. Thus, the :7: :7: :7: relationship of employer and employees between respondent no.1 and the employees represented by the complainant Union is not disputed. Therefore, the prayer in the application to dispose of the entire complaint cannot be accepted. 7. As the respondents have come with the case that the employees are the employees of respondent no.1 and not that the employees are not the employees of any of the respondents but of some third party, the ratios laid down in the case of Cipla Ltd. and Kalyani Steels Ltd. cited supra, have no application in this case. As to whether the respondents 1 and 3 are necessary or proper parties may not be decided at this stage for the contention of the complainant is that there is functional integrality amongst all these 3 companies and there is common management and ownership, including the directors and managers and as such all the three companies is one and the same entity. As to whether ther is functional integrality amongst these three companies or otherwise cannot be decided without the parties go to the trial. There is no bar under the M.R.T.U. & P.U.L.P. Act, empowering this court to look into the issue if more than one companies are in fact one and the same establishments or separate entities having no functional integrality. Therefore, I find no subtance in the application and it deserves to be rejected. With this view, I record my finding on point No.1 in the affirmative." 7. It reveals from the contents of the complaint that, according to the respondent-union, the workmen were interviewed and selected by the petitioner and they were trained by the petitioner and respondent no.5 in the complaint and then they were taken in employment of respondent nos.1, 3 and 5 in the complaint by giving them appropriate letters of appointment. They have also stated that respondent :8: :8: :8: nos.1, 3 and 5 in the complaint are closely functionally integrated and it has common ownership and management including the Directors and the Managers. Insofar as functional integrality is concerned, Mr.Singh, learned senior counsel for the petitioner fairly stated that there is functional integrality between respondent no.2-company and the petitioner. This being so, in my opinion, it would not be proper to delete the petitioner from the array of the respondents at this stage and that they are necessary parties to the complaint. The prayer for dismissal of the complaint for want of jurisdiction has rightly been rejected by the Industrial Court for the reasons stated in the judgment. The judgments relied upon by Mr.Singh, in my opinion, are of no avail to the petitioner since all those cases are in respect of contractors employees filing cases against the principal employer and claiming to be the workmen of the principal employer. In the present case admittedly there is a functional integrality amongst the respondents interse and admittedly, the workmen are employees of respondent no.2-company and the relationship between respondent no.2 and the workmen has not been denied. In the circumstances this petition fails and is dismissed as such. :9: :9: :9: (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.)