1 wp1668-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1668 OF 2011 M/s.Buildtech Constructions & Ors .. Petitioners versus Akhil Bhartiya Shramik Kamgar Union .. Respondent Mr.S.I.Kazi a/w Mr.V.M.Parkar for the petitioners. Ms.Rita Joshi for the respondent. CORAM : S.C.DHARMADHIKARI, J. 12th September 2011. P.C.: . By this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 23rd March 2011 dismissing the review application (ULP No.1/2011) seeking review of the order dated 7th December 2010 passed in complaint (ULP No.1026/2002). The petitioner also impugns the main order, viz., dated 7th December 2010. 2 The petitioners were the original respondents in complaint (ULP No.1026/2002) filed by the respondent-Union alleging unfair 2 wp1668-11.doc labour practices under Items 1(a),(b) and 6 so also Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (for short MRTU & PULP Act). By the final order on this complaint, the learned Member of the Industrial Court has granted partial relief by holding that the petitioners are guilty of unfair labour practices under Item 9 of Schedule IV of the MRTU & PULP Act and that the members of the respondent-Union/concerned employees should be allowed to report for work by giving appointment letters, by maintaining wage register and muster roll etc in accordance with law. Thus, the benefits and privileges that are admissible to these workers in terms of the labour laws be extended to them. 3 There are two contentions which have been raised before me to impugn this order. It is submitted that the foundation of a complaint for alleging unfair labour practices under the MRTU & PULP Act, is that there is an existing employer-employee relationship. The complaint alleges unfair labour practices on the part of the employer in this case. However, despite a clear direction to frame preliminary issue and particularly where there is an 3 wp1668-11.doc employer-employee relationship, the Member, Industrial Court has failed to frame such an issue and try it in accordance with law. In the absence of the failure to abide by the order passed by this Court in earlier round of litigation, the impugned orders are vitiated by a serious error of law apparent on the face of record. Secondly, what the Industrial Court has done in the instant case is to proceed on the basis that the complaint is by the Union on behalf of the workmen who are affected. However, there was no proper authorisation to file such a complaint alleging unfair labour practice. None of the individual workmen were examined. In these circumstances, the complaint of unfair labour practice cannot succeed only on the basis of the evidence of the employer. That has been done in the instant case and it is impermissible in law. Thirdly, the petitioner No.1 is a sole proprietorship concern of the petitioner No.2. The wife of the sole proprietor has been impleaded as respondent to the complaint and ultimately saddled with the responsibility of extending all benefits which are admissible to the concerned workmen. Similarly, some monetary claims are awarded on that basis and tomorrow the recovery would be effected not just from the petitioner No.2, but, even his wife who has nothing to do 4 wp1668-11.doc with the business. She is a housewife and has no concern with the business of her husband at all. For all these reasons, the impugned orders should be set aside. 4 On the other hand Ms.Joshi appearing on behalf of the respondent pointed out that this Court in the earlier round of litigation has prima facie observed that the relationship stands admitted. What was put in issue was the absence of such relationship totally by the petitioners. Therefore, it was for the petitioners to have stepped into the witness box and produce the material in support of their stand taken in the written statement. When the petitioners stepped into the witness box and particularly petitioner No.2, he was cross-examined at length. In his cross- examination he has admitted the employer-employee relationship. There are clear admissions and even the contents of the report of the Investigating Officer would support the version of the respondent-complainant. She also invited my attention to an order passed on 17th October 2008 pursuant to the directions of this Court and it is pointed out that the petitioners failed to abide by that order and produce the necessary documents and records. For all these 5 wp1668-11.doc reasons and in writ jurisdiction it is not permissible to reappreciate and reappraise the factual materials that the petition deserves to be dismissed. 5 With the assistance of the learned counsel appearing for the parties, I have perused the petition and the annexures thereto including the impugned orders. To my mind, this Court passed an order on a writ petition i.e Writ Petition No.2709 of 2003, by the respondent-Union challenging the order dated 11th August 2003 passed by the Industrial Court in this very complaint holding that it had no jurisdiction to try and decide the complaint. It is very clear from a reading of this order that the learned single Judge of this Court was not in agreement with the view taken by the Industrial Court at the threshold. According to the learned Judge, the jurisdictional issue can be decided only on the basis of oral and documentary evidence and not merely on the pleadings. It was pointed out by the learned Judge that the employer has raised a plea of absence of relationship of master and servant. Therefore, once such was the plea raised, then, it was for the employer to produce the necessary materials and prove it. Precisely, that 6 wp1668-11.doc direction has been abided by in this case. 6 It is well settled that hyper-technical view of procedural matters and to subvert the course of justice, is not permissible. Merely because a specific issue has not been framed does not mean that the parties are unaware of the rival cases or the Court has rendered finding on their contentions and pleas without being aware of the controversy. The Industrial Court has adverted to all the materials that have been produced by the employer. The employer/petitioners before me stepped into the witness box, but, they miserably failed to prove their case. On the other hand their admissions, and as pointed out by Ms.Joshi, are fatal to their case. If the admissions and only some of them are referred to, it would be apparent that the petitioners do not deny that the workers were employed by them. That the petitioners were doing some job work including maintaining and carrying out repairs of the buildings, does not mean that there was no employer-employee relationship at all. Absence of records and registers is not enough in this case as to hold that there was no relationship of master and servant. It is very clear that the admissions as referred to in the impugned order are 7 wp1668-11.doc crucial and relevant. 7 The contents of the Investigating Officer’s report are admitted so also the signature below the same. It has been admitted with reference to individual workers that they were working as helpers. This Court is not a Court of Appeal to reappreciate the evidence on record. It is very clear that neither was any grievance raised with regard to the exercise undertaken by the Investigating Officer nor was there any denial of the contents of his report. The report also bears the signatures of the employees and the petitioners. Further, there is a clear admission that there was a formation of Union and that the petitioners were aware of the same. There is correspondence on that point as well. It is very clear that the persons who were engaged for doing the contractual works at site have been engaged by the petitioners and that they have been working for years together. The work is continuing one that is also clear. In such circumstances, the admissions that are noted by the Court below and particularly appearing at pages 102 to 106 of the petition paperbook (paras 19 to 21) are enough to conclude that the petitioners have failed to show that there was no master-servant 8 wp1668-11.doc relationship. The burden being on the petitioners and they having failed to discharge the same, they cannot complain of any technical lapses of a specific issue not being framed. That the directions of this Court were abided by is apparent from the impugned orders. In these circumstances, the plea raised before me that there was non compliance with the order and direction of this Court is without any substance. 8 Equally, the second argument that there was no authority of the Union to file the subject complaint is without any force. Even on this aspect, the admissions are very clear inasmuch as this very Union has corresponded with the petitioners and pointed out that the workmen have approached them. The letter of formation was forwarded so also grievance of the employees. In these circumstances and when the complaint of unfair labour practice has been filed with a specific authority given by the individual workmen to the respondent, then, this grievance is also without any substance. The trial of the complaint is over, a final order thereon has been passed, even a review of the said order has not been granted. After all this is over, now a plea of lack of authority cannot 9 wp1668-11.doc be entertained. 9 As far as the ultimate liability is concerned, to my mind, that also need not detain me because if the petitioner No.3-wife had no connection with the business of the 1st petitioner and that her husband is stated to be sole proprietor of the petitioner No.1, then, if recovery is effected in terms of the impugned orders, it would be open for the said petitioner No.3 to point out that she cannot be proceeded with and she is not liable for any claims of the concerned workmen or the Union. At this stage, it is not necessary to entertain such a plea nor can this aspect vitiate the impugned orders. 10 For all these reasons, the writ petition fails and it is dismissed. 11 The reliance placed upon two judgments, one delivered by a learned single Judge of this Court, Hon’ble Mr.Justice P.B.Sawant, as His Lordship then was, in Writ Petition No.3284 of 1980 dated 14th March 1984 (General Workers Union and Sangli Municipal Council, Sangli & Ors) has no application because in that case the 10 wp1668-11.doc matter was of transfer of employees working with the Municipal Council. The orders were impugned by filing a complaint of unfair labour practice and the allegation was that the Municipal Council acted illegally. Pointing out the difference between a illegality and unfair labour practice, that the observations relied upon have been made by the learned single Judge. To my mind, in this case there was clear intention to deprive the workmen from getting their legitimate dues, which amounts to breach of agreement/settlement or an Award and is unfair labour practice under Item 9 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (Schedule IV). In these circumstances, the judgment in Sangli Municipal Council is distinguishable. Equally, reliance placed on the learned single Judge’s judgment in the case of Lokmat, Proprietors, Lokmat News Papers Ltd Vs. Prabhakar Rambhauji Choudhari & Ors (2003 I CLR 550), is misplaced inasmuch as that was not a case of established and proven master- servant relationship. That was an issue throughout in dispute. On finding that the forum which the employees chose was not appropriate, that this Court opined that the remedy to prove the said relationship is by approaching the Court under the Industrial 11 wp1668-11.doc Disputes Act, 1947 and particularly seeking a Reference in that behalf. As to how these observations can apply when there is proven and admitted relationship, is not clarified at all. Therefore, reliance on this judgment is equally misplaced. 12 The case here depicts that the petitioners who have committed unfair labour practices are trying to dislodge the claims of the workmen on hyper-technical grounds and after seeking protection from this Court in earlier rounds of litigation. The petition at the instance of a employer who seeks to deprive the workers legitimate benefits of a welfare legislation needs to be dismissed at the threshold and with heavy compensatory costs. The petition is, therefore, dismissed with the costs quantified at Rs.10,000/-. (S.C.DHARMADHIKARI, J)