: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 (L) NO. 1938 OF 2008 WRIT PETITION (L) NO. 1938 OF 2008 WRIT PETITION (L) NO. 1938 OF 2008 Reliance Energy Ltd. ..Petitioner versus Rashtrawadi Kamgar Sangh & Ors. ..Respondents Mr. J. P. Cama, Senior Advocate with Mr. R. N. Shah for the Petitioner. Mr. Arshad Shaikh with Mr. Vinod Tayade for the Respondent No. 1. Mr. S. K. Talsania with Mr. Amol Desai for the Respondent No. 2. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 20TH AUGUST, 2008. DATE : 20TH AUGUST, 2008. DATE : 20TH AUGUST, 2008. P.C. P.C. P.C. . Heard. 2. By this petition the petitioner has challenged the Interim Order of the Labour Court confirmed by the Industrial Court in Revision. 3. The respondent No.1 Rashtrawadi Kamgar Sangh, a Registered Trade Union had approached the Industrial Court interalia for a declaration that :2: the petitioner had engaged in unfair labour practices under Item 1(a), (b) and (e) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("MRTU & PULP Act"), and for directing the petitioner to reinstate his 41 workmen concerned in the present complaint with full backwages and continuity of services. The workmen worked in the house-keeping department. In the complaint as also in the application for interim relief filed along with it, the respondent union had, in anticipation of the termination of the workmen sought an order of status quo. That order was granted. Apparently, the petitioner caused the workmen to be removed from the premises on the ground that the contract between the respondent No. 2 Sunita Services and the petitioner had come to an end. Thereupon, the respondent No. 1 union applied for interim relief of reinstatement vide ’U-9’ which has been granted. A notable feature of the case is that the respondent No. 2 Sunita Services, the contractor has filed an affidavit that they are his workmen and they are willing to employ the workmen. 4. Mr. Cama, learned counsel for the petitioner submitted that the impugned order :3: granting interim relief is liable to be interfered with on the ground that the trial court has virtually granted final relief. He further submitted that the relief for continuation of service has been granted on the untenable position when the contract between the petitioner and that the respondent No. 2 Sunita Services is a sham contract. According to the learned counsel for the petitioner it is fundamental that relief in regard to such employment can be granted only on the basis that the contract is a valid contract. 5. As regards the first contention it does appear the Labour Court has virtually granted final relief to the respondents. However, though the courts below have not given a proper expression to the finding, it is clear that the relief has been granted on the ground that there was a breach of order of status quo made on 22.3.2007. This point was agitated by the petitioner before the Labour Court. The Labour Court has considered the contention in paragraph 12 and it appears from paragraph 18 that the Labour Court has stated that removal of the workmen from the place of work with the help of police is one of the reasons for granting interim relief in favour of the workmen. :4: Similarly, the Industrial Court has considered the respondents arguments that the relief claimed by them can be granted since the petitioners have committed a breach of the order of status quo vide paragraph 34. The Industrial Court has eventually held that the petitioners and the contractor have under the garb that the contract between them is concluded, denied work to the concerned employees. In any case, it appears to be an undisputed fact that there was an order of status quo and the workmen were removed from the premises albeit on the ground that the contract between the petitioner and the respondent No. 2 Sunita Services has come to an end. In this view of the matter, it seems that circumstances justify the grant of what appears to be final relief because the Labour Court had initially granted relief which was rendered ineffective by the act of parties. 6. Next contention of Mr.Cama, learned counsel for the petitioner is that the courts below have granted relief on the basis of Section 3(13) and 3(14) of the Bombay Industrial Relations Act. Section 3(13)(a) which is relevant reads as follows:- :5: "a person employed by a contractor to do any "a person employed by a contractor to do any "a person employed by a contractor to do any work for him in the execution of a contract work for him in the execution of a contract work for him in the execution of a contract with an employer within the meaning of with an employer within the meaning of with an employer within the meaning of sub-clause (e) of clause 14" sub-clause (e) of clause 14" sub-clause (e) of clause 14" This according to the learned counsel pre supposes a valid contract held by the Supreme Court in Rashtriya Chemicals & Fertilizers Ltd. & Anr. vs. Rashtriya Chemicals & Fertilizers Ltd. & Anr. vs. Rashtriya Chemicals & Fertilizers Ltd. & Anr. vs. General Employees’ Association & Ors. [(2007) 5 SCC General Employees’ Association & Ors. [(2007) 5 SCC General Employees’ Association & Ors. [(2007) 5 SCC 273]. 273]. 273]. According to the learned counsel the court therefore could not have granted relief to the respondents on the basis that the employees are employees of the petitioner in view of Section 3(13), particularly, in view of the finding that the contract between the petitioner and the respondent No. 2 Sunita Services held to be a sham contract. 7. A careful reading of the Order of the Industrial Court vide paragraph 35 does not disclose that the Industrial Court has held the contract between the petitioner and its contractor to be sham. The court has undoubtedly used the word ’camouflage’ in the following sentence : "The concerned employees are out of work and "The concerned employees are out of work and "The concerned employees are out of work and they are tried to be uprooted from the they are tried to be uprooted from the they are tried to be uprooted from the establishment of the Respondent No.1 on the establishment of the Respondent No.1 on the establishment of the Respondent No.1 on the camouflage that they are the contractor’s camouflage that they are the contractor’s camouflage that they are the contractor’s employees and these are the exceptional employees and these are the exceptional employees and these are the exceptional circumstances, which, to my kind, justify circumstances, which, to my kind, justify circumstances, which, to my kind, justify :6: granting the reliefs as granted by the Ld. granting the reliefs as granted by the Ld. granting the reliefs as granted by the Ld. Lower Court in the Complaint." Lower Court in the Complaint." Lower Court in the Complaint." This does not tantamount to a finding that the contract is held to be sham. The word "camouflage" is used more in the sense of a subterfuge or an excuse said to have been adopted by the petitioner. There is therefore no merit in this contention. 8. In the result it appears that the courts below have granted relief to 41 workmen, most of whom have admittedly been employed for periods of about 23 years. Without there being evidence, at this stage, the contractors were asked by the employers to engage those very workmen. The relief has been granted on an application under sub clause 3(13) (a) of the Bombay Industrial Relations Act. It is a well settled position of law that under the BIR Act a person so employed or recruited or supplied by the contractor are employer of the undertaking as if the employer had directly employed them. In State of Bombay v/s. The Maharashtra State of Bombay v/s. The Maharashtra State of Bombay v/s. The Maharashtra Sugar Mills Ltd. AIR 1951 Bombay 68, Sugar Mills Ltd. AIR 1951 Bombay 68, Sugar Mills Ltd. AIR 1951 Bombay 68, the Division Bench of this Court observed as follows:- ".....Therefore, reading the two ".....Therefore, reading the two ".....Therefore, reading the two :7: sub-sections together the position is that sub-sections together the position is that sub-sections together the position is that when there is the owner of an undertaking & when there is the owner of an undertaking & when there is the owner of an undertaking & that owner of the undertaking does not that owner of the undertaking does not that owner of the undertaking does not employ labour directly, but enters into a employ labour directly, but enters into a employ labour directly, but enters into a contract with a contractor & the contractor contract with a contractor & the contractor contract with a contractor & the contractor supplies the necessary labour for the supplies the necessary labour for the supplies the necessary labour for the purpose of the undertaking of the owner, purpose of the undertaking of the owner, purpose of the undertaking of the owner, then the persons so employed or recruited or then the persons so employed or recruited or then the persons so employed or recruited or supplied by the contractors are as much the supplied by the contractors are as much the supplied by the contractors are as much the employees of the owner of the undertaking as employees of the owner of the undertaking as employees of the owner of the undertaking as if the owner had directly employed them. If if the owner had directly employed them. If if the owner had directly employed them. If may put it in a different way, the may put it in a different way, the may put it in a different way, the Legislature has not chosen to make any Legislature has not chosen to make any Legislature has not chosen to make any distinction between a case where the owner distinction between a case where the owner distinction between a case where the owner of an undertaking employs labour & the of an undertaking employs labour & the of an undertaking employs labour & the ordinary relationship of master & servant is ordinary relationship of master & servant is ordinary relationship of master & servant is set up & the case where the owner set up & the case where the owner set up & the case where the owner interposes, as it were, a contractor between interposes, as it were, a contractor between interposes, as it were, a contractor between himself & the labour which is used for the himself & the labour which is used for the himself & the labour which is used for the purpose of his industry. The interposition purpose of his industry. The interposition purpose of his industry. The interposition of the contractor makes no difference to the of the contractor makes no difference to the of the contractor makes no difference to the relationship between the persons employed & relationship between the persons employed & relationship between the persons employed & the employer. In the eye of the law the the employer. In the eye of the law the the employer. In the eye of the law the relationship in both the cases is identical relationship in both the cases is identical relationship in both the cases is identical with the same rights & liabilities. In this with the same rights & liabilities. In this with the same rights & liabilities. In this case there is no suggestion by the State of case there is no suggestion by the State of case there is no suggestion by the State of Bombay that the Maharashtra Sugar Mills Bombay that the Maharashtra Sugar Mills Bombay that the Maharashtra Sugar Mills Ltd., employed contract labour directly. Ltd., employed contract labour directly. Ltd., employed contract labour directly. The contention is that this labour was The contention is that this labour was The contention is that this labour was employed through the instrumentality of employed through the instrumentality of employed through the instrumentality of contractors & therefore, this labour fell contractors & therefore, this labour fell contractors & therefore, this labour fell within the meaning of Section 3(13)(a), & within the meaning of Section 3(13)(a), & within the meaning of Section 3(13)(a), & the company was its employer within the the company was its employer within the the company was its employer within the meaning of Section 8 (14)(e), & it is from meaning of Section 8 (14)(e), & it is from meaning of Section 8 (14)(e), & it is from the point of view of this contention that we the point of view of this contention that we the point of view of this contention that we have to consider whether the finding of the have to consider whether the finding of the have to consider whether the finding of the Industrial Court was right or erroneous as Industrial Court was right or erroneous as Industrial Court was right or erroneous as held by the learned Judge below." held by the learned Judge below." held by the learned Judge below." In this view of the matter, there is no reason to interfere with the interim order, the petition is therefore dismissed. Having regard to the circumstances of the case, the trial court is directed to decide complaint not later than six months from the next date. Parties are directed to :8: appear before the trial court on 15th September, 2008. Interim order in relation to stay of prosecution shall continue for a period of four weeks from today. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)