1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.1743 OF 2009 Hindustan Unilever Limited ..Petitioner. Vs. The Federation of Hindustan Lever Ltd. and/or its Associated / Allied Companies Employees Union and others ..Respondents. .... Mr. K.M. Naik with Mr. Mahesh Londhe i/b M/s. Sanjay Udeshi & Co. for the Petitioner. Mrs Meena H. Doshi with Ms Bennet D’Costa for Respondents 1 and 2. Mr. R.N. Shah with Mr. Piyush Shah for Respondents 3 to 7, 9 and 10. ..... CORAM : DR. D.Y. CHANDRACHUD, J. 10th November, 2009. P.C. : 1. The challenge in these proceedings under Article 226 of the Constitution is to an order passed by the Industrial Tribunal on 16th April, 2009 directing the management to allow the representative of the union to take inspection of documents of which a reference has been made in the application filed by the union (Exhibit U-14). The reference before the Industrial Tribunal pertains to the question as to 2 whether the contract between the management and certain contractors is sham and bogus and whether the contract workmen are entitled to absorption as direct employees of the management. During the pendency of the reference the union filed an application at Exhibit U-47 on 20th September, 2008 for production of 32 documents. An affidavit was filed in support of the application containing a statement as to why the documents were relevant to the issues which arise in the reference. According to the union, the documents establish essentially that it was the management which had supervision and control over the contract workmen. At this stage it would be necessary to clarify that this Court is not required to enter upon the merits of the rival contentions since the trial in the reference is still to take place. 2. The Industrial Court by its order dated 16th April, 2009 held that the issue involved in the reference was whether the management was exercising supervision and control over the contract workmen and having regard to the nature of the issue, the documents were 3 necessary and relevant. The order of the Industrial Tribunal was questioned in these proceedings. During the pendency of these proceedings, the Learned Single Judge by an order dated 7th September, 2009 sought a clarification from the Industrial Tribunal since it appeared that there was a punctuation error in the order of the Tribunal. Pursuant to the direction of the Court, the Industrial Tribunal has passed a further order on 22nd September, 2009 recording that the management had denied the existence of an employer-employee relationship with the workmen. The Industrial Tribunal observed that in order to determine whether an employer- employee relationship exists, the relevant test is the exercise of supervision and control. The production of the documents has been considered necessary and relevant in order to enable the Tribunal to decide as to whether the management was engaged in direct supervision and control over the workmen involved in the reference. The Industrial Tribunal has also observed that when it passed an order on the application at Exhibit U-47, it had taken into consideration the relevance of the documents and that in the affidavit 4 in support filed by the union (Exhibit U-48) the relevance of each of the documents has been demonstrated. The Tribunal has noted that it has considered each of the documents while deciding the question of relevance. 3. Counsel appearing on behalf of the Petitioner relied upon a judgment of a Division Bench of this Court in The 20th Century Fox Corp. (India) (P) Ltd. v. F.H. Lala1, The Division Bench noted that under Section 11(3) of the Industrial Disputes Act, 1947 the Tribunal had the same powers as those vested in a Civil Court while trying a suit inter alia in compelling the production of documents. Learned counsel submitted that under Order 21 Rule 18(2) the production of documents other than those referred to in pleadings is conditioned by the observance of certain conditions and those conditions have not been fulfilled in the present case. Learned counsel submitted that save and except for the documents which have already been produced by the management in Complaint (ULP) 758 of 1996 (referred to in paragraph 7 of the impugned judgment) the management does not 1 1974 II L.L.J. 156 5 have in its possession originals of the documents of which inspection has been granted, save and except for the documents at Sr. Nos.1 and 32. In respect of the documents at Sr. No.1 (copies of the licence and registration under the Contract Labour Act) and Sr. No.32 (copies of the registration certificate under the Bombay Shops and Establishment Act, 1948), it has been stated that the management has in its possession the documents pertaining to the last four or five years of which inspection would be granted. 4. On the other hand, it has been urged on behalf of the union that in support of the application for production, a detailed affidavit has been filed. By the affidavit the relevance of each of the documents has been explained. Therefore, it has been submitted that it was not correct to urge that the issue of relevance has not been decided by the Tribunal. 5. Section 11(3) of the Code of Civil Procedure confers upon the Industrial Tribunal the powers of a Civil Court under the Code of 6 Civil Procedure, 1908 when trying a suit in respect of various matters. Among them is compelling the production of documents and material objects in clause (b) of sub section 3. Order 11 of the Code of Civil Procedure deals with discovery and inspection. Rule 14 provides that it shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right. Rule 15 of Order 11 deals with inspection of documents referred to in pleadings or affidavits. Every party to a suit is entitled at or before the settlement of issue to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving notice. Any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf unless certain exceptional circumstances set out therein are met. Rule 18 deals with inspection. Sub rule (1) of Rule 18 empowers the Court to make an order for inspection where a party served with a notice under Rule 15 7 omits to give such notice of inspection or objects to inspection. Sub rule (2) of Rule 18 provides that any application to inspect documents except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit. Sub rule (2) requires that the affidavit must (i) show what documents are sought to be inspected; (ii) show that the party applying is applying to inspect the documents and (iii) show that the documents are in possession or power of the other party. The Court will not make an order for inspection if it is of the opinion that it is not necessary either for disposing of the suit fairly or for saving costs. 6. In the present case the inspection of documents is sought under sub rule (2) of Rule 18 of Order 11. These are not documents which are referred to in the pleadings, particulars or affidavits of the management, but are documents which the union considers necessary for the purposes of the disposal of the reference. The reference, as noted earlier, raises an issue as to whether the contractual 8 arrangement made by the management is sham and as to whether the workmen are entitled to a declaration that they are the direct employees of the management. In such a case it is a well settled principle of law that the test to be applied is as to whether an employer-employee relationship exists between the management and the contract workmen. In order to determine as to whether a relationship of employment exists between the management and the contract workmen, the question to be considered is as to whether supervision and control over the contract workmen is being exercised by the management. These principles are well settled and have been applied in a recent judgment of the Supreme Court in Hindalco Industries Ltd. v. Association of Engineering Workers2. 7. The union had sought production of 32 documents in its application at Exhibit U-47. In support of the application the union filed an affidavit explaining the relevance of each of the documents. The affidavit explains why production has been sought. The explanation of the union makes it clear that the documents were 2 2008 I CLR 1023. 9 considered to be relevant because the union seeks to establish that supervision and control over the contract workmen was being directly exercised by the management. Whether the union is correct or otherwise is a matter to be determined in the reference. The Tribunal has observed in the course of its order that many of the documents of which production is sought are old documents and by their very nature are bulky. However, having regard to the fact that the documents are necessary and relevant in order to determine as to whether supervision and control over the workmen was being exercised by the management, the Tribunal directed the management to furnish inspection of the documents to the representative of the union. 8. During the course of the judgment the Tribunal observed in paragraph 7 that some of the original documents of which production was sought have already been produced on the record in a prior complaint of unfair labour practises, Complaint (ULP) 758 of 1996 between the same parties. Counsel appearing for the management 10 has also stated during the course of the hearing of these proceedings that though initially it was the case of the management that it did not have originals of any of the documents of which inspection has been sought by the union, the management now accepts the position that it has already produced the originals in the aforesaid complaint of unfair labour practices of some of the documents. This the Court is informed by both the learned counsel was established after the record and proceedings was called and examined. Insofar as those documents are concerned, no separate orders are therefore necessary in these proceedings. The grievance of the management, however, is that the remaining documents save and except for the documents mentioned in Sr. No.1 and 32 of the application are not available with the management in the original form. For the purposes of Order 11 Rule 18(2) of the Code of Civil Procedure as already noted earlier it has to be established that the documents are in the possession or power of the other party. Counsel appearing for the management has stated before the Court that the management shall within a period of two weeks from today file an affidavit before the Tribunal clarifying 11 as to which of the documents mentioned in the application at Exhibit U-47 are not within the possession or power of the management. The statement is recorded and accepted. Once such an affidavit is filed there would be no question of any further order being passed at this stage for the inspection of such documents the originals of which are not within the possession and power of the management. In view of the aforesaid directions, no further directions are sought or are necessary. The Petition is accordingly disposed of. 9. On the request of counsel appearing on behalf of the union it is clarified that the union will be at liberty to move an application for leading secondary evidence under Sections 63 and 65 of the Evidence Act. In the event that such an application is made, the Tribunal shall consider the application after hearing the parties. The aforesaid order is passed without prejudice to the rights and contentions of the parties in the pending reference including the right to cross examine the witnesses on such aspects as are considered to be germane and relevant. The reference is of the year 2001 and even 12 the application for interim relief was disposed of in 2008. Having regard to these circumstances, it would be appropriate to expedite the disposal of the reference and to direct the Tribunal to endeavour to do so by 31st May 2010. *****