(1) WP. 4348.1998 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4348 OF 1998 Thekedar Mazdoor Sangh, Plot No.4/101, Nirmal Chambers, Ahmednagar .. Petitioner VERSUS 1] M/s Indian Seamless Metal Tubes Ltd., C-1, MIDC Area, Nagapur, Ahmednagar 2] Sodhi Fabricators & Erectors, Through Indian Seamless Metal Tubes Ltd., C-1, Nagapur IA, Ahmednagar .. Respondents Mr. Ulhas S. Sawaji, Advocate h/f. Mr. T.K. Prabhakaran, Advocate for the Petitioner Mr. Vinayak Upadhye, Advocate for respondent no.1 Mr. R.R. Mantri, Advocate for respondent no.2 ... CORAM : V.R. KINGAONKAR, J. DATED : 7TH JUNE, 2010 ORAL JUDGMENT:- 1] By this Petition the petitioner impugns the part of the judgment rendered by Industrial Court, Ahmedngar, in complaint (ULP) no. 666 of 1995 to the extent of exclusion of the respondent no.1 from liability to pay the wages from 1.9.1995 till 27.10.1995, which was the period of lock-out. (2) WP. 4348.1998 2] The petitioner approached the Industrial Court with the complaint alleging that the respondents committed unfair labour practices under section 28(1) r/w. item no.1(a)(b), 2,3,4(a)(f),(6), (9) and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The long and short of the petitioner's case before the Industrial Court was that the respondent no.1 used to allow its premises for manufacturing activities through contractor. The members of the petitioner Union were employees of the respondent no.2. They were initially employed by another contractor by name Scientific Technical Services. The respondent no.1 decided to terminate the contract with Scientific Technical Services and thereafter the employment of the members of the petitioner came to be transferred in favour of the respondent no.2 by a written agreement. The respondent no.1 gave consent to the agreement between the said two contractors. The petitioner asserted that the respondent no.1 avoided to give benefit of permanency to the employees by indulging in such unfair labour practice of getting the work done through the contractor though it was illegal. The practice of showing employment of the workers with the contractor was only a camouflage though they were employees of the respondent no.2. The respondent no.2 illegally declared lock out and denied work to (3) WP. 4348.1998 the members of the petitioner. The action of the respondent no.2 of effecting lock out and refusing to employ the members of the petitioner was illegal and it was backed up by the respondent no.1. The petitioner therefore, claimed various reliefs including wages to the members during the period of lock-out. The Industrial Court partly allowed the complaint and directed the respondent no.2 to pay the wages for period between 1.9.1995 till 27.10.1995 on finding that the lock-out was illegally effected by the respondent no.2. The Industrial Court however, held that the respondent no.1 was not responsible for the alleged lock-out and was not liable to pay any wages to the workers for the relevant period. 3] The petitioner alleged that even the respondent no.1 ought to have been made liable to pay the wages to the workers for the period of lock-out though the lock-out was at the behest of the respondent no.1. The petitioner claims that the employees were engaged by the respondent no.1 and that the contractor was only a name lender and was not the real employer as such. The petitioner therefore, seeks modification in the impugned judgment by directing the respondent no.1 to comply with the order rendered by the Industrial Court. 4] Heard learned counsel for the parties. (4) WP. 4348.1998 5] Before I proceed to consider the merits, let it be noted that the petitioner approached the Industrial Court with a specific case that the employment was done by the contractor i.e. respondent no.2. It was nowhere the case of the petitioner that the workers were engaged by the respondent no.1 though, on record the work was carried out in the name of the contractor. The petitioner further alleged that the lock-out was at the instance of the respondent no.2. There was no averment that the respondent no.1 had declared illegal lock-out and therefore, the employees were unable to work. It is pertinent to notice that the respondent no.1 categorically denied employer- employee relationship between members of the petitioner and respondent no.1. Needless to say the employer-employee relationship between them was a disputed question raised during the proceedings before the Industrial Court. 6] It is contended by learned Advocate for the petitioner that the respondent no.1 had willingly allowed the premises to be utilised for the work and that the transfer of employment was effected with consent of the respondent no.1 are the glaring facts. Reliance is placed on Hindalco Industries Ltd. Versus Association of Engineering Workers (2008) AIR SCW 2618. The Apex Court held that the canteen workers (5) WP. 4348.1998 were the workmen of the management because the ultimate control and supervision over the canteen was of the company. The canteen used to be run through the contractor. The fact situation in the case of Hindalco Industries Ltd. is on a different footing. The canteen was being run for benefit of the workers and was part of the activity of the company i.e. Hindalco Industries Ltd. It was noticed that the employment was made through contractor by the company itself. The employees were directed to be absorbed in the service due to the peculiar nature of the employment. In the present case, the petitioner averred, inter-alia, that the workmen were employed by the respondent no.2. There is no material on record to show that the work of the workmen was being supervised and controlled by the respondent no.1. What transpires from the record is that the respondent no.2 was having full control over the employees and therefore, could be regarded as the real employer. In other words, the respondent no.2 was not only a name lender and the employment through the respondent no.2 was not only a facade. The respondent no.1 seriously disputed the employer- employee relationship and therefore, the issue could not be so decided by the Industrial Court. 7] In Sarva Shramik Sangh Vs. Indian Smelting and Refining Co. Ltd. and others 2003 AIR SCW 5989, the Apex Court held that the Industrial Court has no (6) WP. 4348.1998 jurisdiction to entertain the proceedings under the M.R.T.U. and P.U.L.P. Act where enquiry is contemplated under the Industrial Disputes Act and the Contract Labour Act. The Apex Court observed: "When that basic claim is disputed obviously the issue has to be adjudicated by the forum which is competent to adjudicate. The sine quo non for application 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 the relationship existing by contractual arrangement which is sought to be abandoned and negated and in it's place the complainant's claim 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 (7) WP. 4348.1998 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 Industrial Disputes 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 CIPLA's case (supra), the view which really echoed the one taken about almost a decade back." 8] The legal position which boils down is that when there is a dispute about the employer-employee relationship and there is need to render fact finding on such issue, the workmen union have to seek adjudication of such issue under the provisions of the Industrial Disputes Act. The complaint under the provisions of the M.R.T.U. and P.U.L.P. Act, particularly under section 28 can-not be directly entertained against such a disputed employer. The impugned judgment, therefore is un-assailable. No interference is called for. 9] In the result the Writ Petition is dismissed. No costs. Sd/- (V.R. KINGAONKAR, J.) arp