1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3102 OF 1997 Executive Engineer (O & M) Maharashtra State Electricity Board R/o. Chalisgaon, District Jalgaon ...Petitioner Versus Hajarabi w/o Abbas Khatik Age major, Occ. Labour, R/o Jamada, Tq. Chalisgaon District Jalgaon ...Respondents ..... Mr. P.B. Paithankar, advocate for the petitioner Mr. A.R. Rathod, advocate for respondent ..... CORAM: S. S. SHINDE, J. DATE OF RESERVATION OF JUDGMENT : 16 .11.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 23.11.2010 JUDGMENT: 1 This writ petition takes exception to the judgment and order dated 14.3.1997, passed by the Member, Industrial Court, Nashik, Camp at Jalgaon, in complaint (ULP) No. 426 of 1991. 2 2 The respondent herein is the original complainant and the petitioner herein is the original respondent before the Industrial Court at Nashik. The respondent had filed a complaint under Item 5,6, and 9 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971 (hereinafter for the sake of brevity referred to as “MRTU and PULP Act”), against the petitioner. It was contended in the said complaint that the husband of the respondent was in the employment of the petitioner herein as line helper on permanent basis since 1981. While he was working with the petitioner, he met with an accident during the course of employment on 3.5.1987 and suffered 90% disability and due to that he expired on 15.6.1989. 3 Deceased Abbas Usmal Khatik has two sons and two daughters and one wife i.e. the complainant. At the relevant time, all four children were minors. The respondent wife has no source of income and she is only Karta for her family. Her children are dependent upon her. She made requests from time to time to the petitioner employer to appoint her on compassionate ground, however, the employer refused to do so. It is the contention of the respondent that the petitioner employer has adopted unfair labour practice by not giving her employment and the respondent has also violated various guidelines and circulars, therefore, she prayed that she would be taken in the 3 employment of the respondent and further direction should be given to the petitioner that difference of wages should be given to her from the date of filing of application for appointment/employment. It was further prayed that the complaint should be allowed with costs. In support of her contention the complainant has filed as many as 17 documents before the Industrial Court. 4 The petitioner herein who is employer has filed preliminary objection vide Exh. C-2 on 2.8.1991 stating therein that the complainant is not workman within the meaning of Section 2(s) of the Industrial Dispute Act, 1947. It was further contended that there is no employer and employee relations between the petitioner and the respondent, and therefore, the court has no jurisdiction to entertain the complaint. As such, the complaint is not tenable. It was further contended that the court should frame preliminary issue as to whether the complaint filed by the complainant is tenable in law. The petitioner had also prayed that if the Industrial Court comes to the conclusion that the complaint filed by the complainant is tenable in law as well as on facts then the petitioner employer may be allowed to submit its detailed reply to the complaint, since the said issue goes to the root of the matter. It was, therefore, prayed that since the complainant is not workman within the meaning of section 2(s) of the Industrial Dispute Act, 1947, the complaint filed by the complainant deserves to be dismissed. 4 5 The Industrial Court framed as many as three issues for its consideration, which are reproduced herein below;- i) Whether the respondent proves that the complaint is not maintainable under the provisions of M.RT.U. and P.U.L.P. Act, 1971? ii) Whether the complainant proves that she is entitled to get employment on compassionate grounds? iii) What order? The Industrial Court allowed the complaint filed by the respondent herein and declared that the petitioner herein is engaged in unfair labour practice and further directed to consider the application of the respondent herein and to appoint her in the employment on proper post on compassionate ground as provided in their service Rules. Hence, this petition. 6 Learned counsel appearing for the petitioner submits that it was specific contention of the petitioner herein that there is no relationship as employer and employee between the petitioner and the respondent and therefore, the complaint is not maintainable. It is further argued that the Industrial Court was obliged to frame preliminary issue about 5 the relationship between the petitioner and the respondent and further to adjudicate the said issue and render the findings about the maintainability of the complaint. It is further argued that it was specific case of the petitioner that said issue is required to be adjudicated first and in case the Industrial Court comes to the conclusion that the complaint is maintainable, in that case opportunity should have been given to the petitioner herein to file written statement and to lead evidence. Counsel for the petitioner, invited my attention to the written statement filed before the Industrial Court to contend that it was specifically stated in the written statement that in case the court decides the preliminary issue about maintainability of the complaint in favour of the respondent, in that case, the petitioner should be given opportunity to file further written statement on merits and to lead the evidence. However, the Industrial Court chosen to frame the issue and without affording proper opportunity to the petitioner to file further written statement and to allow the petitioner to lead evidence, allowed the complaint. According to the counsel for the petitioner, the course adopted by the Industrial Court was impermissible in law. The Industrial Court should have adjudicated the preliminary issue about relationship between the petitioner and the respondent and about maintainability of complaint and then only should have proceeded to frame further issues at later stage for adjudication on merits of the matter. In support of his contention, learned counsel has placed reliance on the reported judgment of the Hon’ble Supreme Court in the 6 case of Sarva Shramik Sangh Vs. M/s. Indian Smelting and Refining Co. Ltd. and others, reported in AIR 2004 SC 269 and in the case Electronics Corporation of India Ltd. Vs. Electronics Corporation of India Service Engineers Union, reported in AIR 2006 SC 2996. Relying on those judgments, learned counsel would contend that unless there is relation as employer and employee and unless said fact is ascertained by the Industrial Court, further adjudication on merits is impermissible. 7 On the other hand, learned counsel for the respondent submits that the Industrial Court has considered all aspects including the preliminary objection raised by the petitioner herein that the complaint is not maintainable. Learned counsel invited my attention to the findings recorded by the Industrial court in para 20 of the judgment. Learned counsel further invited my attention to Exh. R-1 that the relevant Rules and the scheme about giving employment to the sons and daughters of the deceased employee. According to the learned counsel for the respondent, the Industrial Court taking into consideration the relevant Rules and the scheme which is applicable to the petitioner establishment, has directed to give appointment on compassionate ground. It is further submitted that it is not in dispute that the husband of the respondent sustained serious injuries during the course of employment, therefore, the counsel for the respondent relying on the findings recorded by the Industrial Court would contend 7 that the interference by this court in the findings recorded by the Industrial Court is not warranted. 8 I have given due consideration to the rival submissions advanced by the counsel for the parties. In my opinion, the counsel for the petitioner is correct in his contention that the Industrial Court should have framed preliminary issue about maintainability of complaint and after decision on the said issue, the court should have proceeded on merits by further framing the issue to that effect. It is not in dispute that the respondent herself was not in employment of the petitioner. On careful perusal of the reasons and findings recorded by the Industrial Cort, in my opinion, the Industrial Court has utterly failed to address the preliminary issue raised by the petitioner about maintainability of complaint. The Industrial Court has recorded cryptic finding in para 20 of its judgment, which reads thus:- “20 Considered the arguments advanced by the learned advocate for the complainant. Perused the documents produced on record. Carefully examined the evidence of the complainant and on applying my mind to the facts and circumstances involved in this case and on perusal of the documentary evidence on record, I am of the opinion that the respondent has indulged in unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. And P.U.L.P. Act 1971. Item 5 and 6 are not attracted in this matter for the simple reason that there is no employer-employee relationship between the 8 complainant and the respondent. However, the service regulations providing for appointment of the dependent of the employee on compassionate ground on certain contingencies referred to in the Service Regulations and/or subsequent circulars or correction slips produced on record are the service conditions and the respondent being a statutory body it amounts agreement, settlement covering the Service Conditions of the employee and an approach thereof or non implementation thereof being an unfair labour practice. I have to record that the said unfair labour practice had been committed by the respondent and respondent is indulging in the said unfair labour practice even thereafter and therefore, the Issue No.2 is answered in affirmative. Since I have already held that the complaint is maintainable Issue No.1 is answered in negative. “ 9 Upon perusal of the contents in para 20, extracted herein above, it is abundantly clear that no reasons have been recorded by the Industrial Court how the petitioner herein i.e. employer has indulged in unfair labour practice under Item 9 Schedule IV of the M.R.T.U. And P.U.L.P. Act, 1971. On careful perusal of the aforesaid paragraph, it is clear that no reasons have been recorded by the Industrial Court and by cryptic finding the Industrial Court concluded that the employer has indulged in unfair labour practice. Secondly, there is no discussion even on merits of the matter as to which Circulars, Rules and the Regulations are applicable in the case of the respondent. Thirdly, there is also no exhaustive discussion about preliminary objection 9 raised by the petitioner about relationship as employer and employee between the petitioner and the respondent. On careful perusal of the findings recorded by the Industrial Court, it is abundantly clear that the Industrial Court has not looked into the relevant provisions and authoritative pronouncement of the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Sarva Shramik Sangh (supra) in para 21 held thus:- “ There can be no quarrel with the proposition as contended by the appellants that the jurisdiction to decide a matter would essentially depend upon pleadings in the plaint. But in a case like the present one, where the fundamental fact decides the jurisdiction to entertain the complaint itself the position would be slightly different. In order to entertain a complaint under the Maharashtra Act it has to be established that the claimant was an employee of the employer against whom complaint is made, under the I.D. Act. When there is no dispute about such relationship, as noted in paragraph 9 of CIPLS’s case (supra) the Maharashtra Act would have full application. When the 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.” (Emphasis supplied). Therefore, it follows, from the aforementioned authoritative 10 pronouncement of the Hon’ble Supreme court that the Industrial court was obliged to first decide the question about maintainability of the complaint separately. Secondly, though it was specific contention of the petitioner herein that after adjudicating the preliminary issue about maintainability of the complaint and relationship between the petitioner and the respondent as employer and the employee, the petitioner be given chance to file detail written statement and to lead evidence has been turned down by the Industrial Court by framing all issues simultaneously. Therefore, the Industrial Court has adopted the course which was not permissible in law. Thirdly, the findings recorded by the Industrial court are cryptic in nature and without giving opportunity to the petitioner to file further written statement on merits of the matter and also not allowing the petitioner to lead evidence. Fourthly, the Industrial Court has not discussed which Rules, Regulations or the guidelines are applicable for appreciating the claim of the respondent for appointment on compassionate ground. It is also relevant to mention that the operative part of the order of the Industrial Court has no clarity. The Industrial Court in clause 3 of its operative part of the order has directed thus:- “3. The respondent is further directed to consider the application of the complainant and to appoint her in the employment on the proper post on compassionate ground as provided in their service Rules.” 11 10 On perusal of clause No.3, it creates confusion whether the Industrial Court has directed to consider the application of the complainant and after considering the said application to take decision about her appointment or to consider the application and give appointment to the respondent straightway. Therefore, taking into consideration the peculiar facts and circumstances of the case and more particularly the cryptic findings recorded by the Industrial Court ignoring the preliminary objection of the petitioner about maintainability of the complaint, in my opinion, the only course open for this Court to remand the matter back to the Industrial Court for fresh adjudication. Since the matter requires recording of evidence by the parties, the only course open is to remand the matter back to the Industrial Court. 11 In the light of the above, the impugned judgment and order dated 14.3.1997 passed by the Member, Industrial Court, Nashik Camp at Jalgaon in Complaint (ULP) No. 426 of 1991 is quashed and set aside. The matter is remanded back to the Industrial Court for fresh consideration and adjudication. While deciding the matter the Industrial Court should first adjudicate the preliminary issue raised by the petitioner about maintainability of the complaint separately and then only proceed to decide the matter. Complaint (ULP) No. 426 of 1991 is restored to its original position. Since considerable time has been lapsed in prosecuting this writ petition by the petitioner, it would be just and proper in the interest of justice that the Industrial Court at 12 Nashik would decide the complaint (ULP) No. 426 of 1991 afresh, within a period of four months from the date of receipt of the order of this court. Record and proceedings if any, be sent back to the concerned court forthwith. 12 In the above circumstances, writ petition is partly allowed. Rule is made absolute partly. *****