1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6384 OF 1997 1. The Agricultural Produce Market Committee ) Solapur. ) Shri Shidheshwar Bazar Peth, Hyderabad Road ) Solapur 413 005. (through its Secretary, ) Shri Kamalapur.) ) 2. The Chairman, ) The Agricultural Produce Market Committee, ) Solapur. ) Shri Shidheshwar Bazar Peth, Hyderabad Road ) Solapur 413 005. ) ... Petitioners Versus 1. Nagnath Jyotiram Ghodke, since deceased ) by his heirs and legal representatives: ) 1A. Smt, Suglabai Nagnath Ghodke, ) 1B. Shri Limbaji Nagnat Ghodke, ) Both adults, residing at Joshi Galli, ) Kisan Sarvade Wada, At & Post Shelgi, ) Solapur. ) 2. Presiding Officer, First Labour Court, ) Solapur. ) [Respondent No.2 joined as Formal Party ) and hence not required to be served with ) notice of Petition.] ) ... Respondents Mrs. Jai V. Kanade with Mr. Girish Godbole for the petitioners. Mr. Nitin Jamdar for the respondents No.1A and 1B. 2 CORAM: S.J. VAZIFDAR, J . DATED : 5TH JANUARY, 2010. ORAL JUDGMENT. : 1. The Petitioner has sought a writ of certiorari quashing the impugned judgment and award dated 29th November, 1997, passed by the learned Presiding Officer of the First Labour Court at Solapur in an application under section 33-C(2) of the Industrial Disputes Act, 1947 (ID Act). The Petitioner has also sought a declaration that there is no relationship of employer and employee between Petitioner No.1 and Respondent No.1. Petitioner No.2 is the chairman of Petitioner No.1. Respondent No.2, the Presiding Officer, is joined only as a formal party. 2. By the impugned order and judgment, Respondent No.2 allowed the application filed by Respondent No.1 under section 33- C(2) to the extent of the aggregate sum of Rs.1,27,992.50 and rejected the claim towards leave with wages. 3. The Petitioner has challenged the impugned order on the ground 3 that the claim of Respondent No.1 is barred by the principles of res judicata and on the ground that the application is not maintainable under section 33-C(2) of the ID Act. 4. The Petitioner is established under the provisions of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963. 5. On 1st October, 1960, Respondent No.1 was granted a licence in Form-2 for operating as a weighman/measurer. The licence has admittedly been renewed from time to time. I will refer to the terms and conditions of the licence later, while dealing with the rival contentions regarding the existence of an employer-employee relationship. 6(A). The Petitioner had earlier filed a similar application seeking reliefs for himself but in the name/as the President of Shri Shidheshwar Bazar Samitee Tolar Union being IDA (LCS) No.1668 of 1977. That application was dismissed by the then Presiding Officer of the Labour Court by an order and judgment dated 7th December, 1978. It was held that the Petitioner was not a workman and was not 4 entitled to file any application under section 33-C(2) of the ID Act. It was held that weighmen are the licencees of the Petitioner and not their employees. (B) The impugned order was passed in Application (IDA) No.140 of 1986 filed this time by the President of the said union in his personal/individual capacity. It is in view thereof that it was contended by Mrs. Kanade, the learned counsel appearing on behalf of the Petitioners that the application is barred by the principles of res judicata. As I have come to the conclusion that the application is not maintainable under section 33-C(2), it is not necessary to consider this point. 7. I have come to the conclusion that the application is not maintainable under section 33-C(2) as there is a serious dispute on the question as to whether there exists an employer-employee relationship between Petitioner No.1 and Respondent No.1. Such a dispute could not have been adjudicated in the application under section 33-C(2) of the ID Act. 5 8. In the application, Respondent No.1 stated that he had been working as a weighman with Petitioner No.1 since 1st October, 1960; that his duty is to weigh or measure the agricultural produce of the agriculturists on behalf of the Petitioner No.1; that he is required to work from 10.00 a.m. to 8.00 p.m.; that there is a separate muster roll kept for all the weighmen like himself; that he gets holidays every Sunday and other days when the market is closed; that he is not given annual leave with wages, over-time and bonus and that he is made to work throughout the year. It is further alleged that he is a semi-skilled worker for the purposes of payment of minimum wages. Respondent No.1 admitted in the application that Petitioner No.1 does not pay his wages to him directly, but contended that Respondent No.1 directs the traders or commission agents to pay his wages according to the work of weighment done by him. The traders or commission agents, accordingly, deduct the amount from the payment to be paid to the agriculturists and the same is less than the minimum wages. 9. Respondent No.1 alleges in the application that till a scheme is executed for the payment of wages and other benefits, he is at least 6 entitled to receive minimum wages under the Minimum Wages Act, 1948 from the inception of the market committee. He further contended that he is also entitled to other benefits such as bonus. Respondent No1, accordingly, made the application to recover a sum of Rs.1,52,211.80 with interest at 18% per annum. 10. In the Written Statement, the Petitioners expressly denied the existence of a master and servant relationship and contended that the application under section 33-C(2) is, therefore, not maintainable. The Petitioners averred that they are not liable to pay the weighment charges to Respondent No.1 and that Respondent No.1 is entitled to recover the same only from the agriculturists who sell their products. It is further contended that the Petitioners only prescribe and fix the rates payable to weighmen, but do not pay the same themselves to them. The rates are sanctioned by the Government. 11. The main question, therefore, that falls for consideration between the parties is whether there existed a master and servant relationship between Petitioner No.1 and Respondent No.1. I will proceed on the basis that if there was no real or substantial dispute in 7 this regard, the application under section 33-C(2) would be maintainable. There cannot, however, be any dispute that if the answer to this question itself is not clear from the face of the record and requires to be adjudicated upon not merely on the basis of the record, but also with the aid of oral evidence, the application would not be maintainable. 12. In my view, on the basis of the record as it stands, it is, in fact prima facie at least, difficult to hold that there exists an employer- employee relationship between Petitioner No.1 and Respondent No.1. The impugned order has proceeded on the basis that there is no dispute amongst the parties that the applicant was working as a weigh- man and that the rates of remuneration were fixed. The Labour Court, however, then goes on to hold that in view thereof there is no need of any adjudication as to whether Respondent No.1 was a workman or a licencee as the admitted nature of duties makes him a workman. The Labour Court held that it does not require any adjudication only because Respondent No.1 is referred to as a licencee. 13. That Respondent No.1 worked as a weighman and that the rates 8 of remuneration were fixed cannot, by any stretch of imagine, conclusively establish an employer-employee relationship. The question, in fact, is whether Respondent No.1 worked as a weighman as an employee of Petitioner No.1 or whether he performed the functions of weighing the goods as a licencee under the said licence. This aspect certainly required adjudication. The Labour Court has, therefore, proceeded on an incorrect basis. 14. The terms of the licence admittedly executed by Respondent No.1 and Petitioner No.1 by themselves indicate that Respondent No.1 is only a licencee and not a workman. The licence must indeed be read as a whole. For instance, the document itself is termed a licence. Though not by itself, read with the other provisions, it indicates the appointment of Respondent No.1 as a licencee and not as an employee. Clause 2 restricts the period of the licence and provides that upon the expiry thereof, the validity of the licence would come to an end. This is contrary to a contract of service. Clause 9(1) provides that the licencee shall not engage the services of assistants except the persons mentioned therein. If Respondent No.1 was himself an employee there would be no question of his engaging the services of 9 an assistant. Clause 9(2) provides that all acts of the licencee’s assistants shall be deemed to be acts done on behalf of the licencee with his express or implied permission. Such a clause would be alien to an employer-employee relationship. 15. Even assuming that some of the clauses in the licence do not indicate one way or the other on this issue, the least that must be said is that the document requires serious consideration on the issue. Mr. Jamdar submitted that though the document is termed a licence, it is really a colourable licence and the real relationship between the parties is that of employer and employee. Such an issue would necessarily require evidence. The onus of establishing the same would clearly be upon the employee. This cannot be done in an application under section 33-C(2). 16. Relying upon Sections 6, 10(1), 29(2) (ii),(vii), (xx), (xxi) and (xxii) and section 30A(3) and (4)(v) of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963, Mr. Jamdar submitted that weighment is an important part of the function of the APMC. That weighment is an essential function can hardly be denied. It is an 10 essential part of the transaction as the payment would be dependent thereon. The question, however, is whether the provisions established an employer-employee relationship. The provisions of the said Act relied upon by Mr. Jamdar are as follows: “6(1). Subject to the provisions of the section and of the rules providing for regulating the marketing of agricultural produce in any place in the market area, no person shall, on and after the date on which the declaration is made under sub-section (1) of section 4, without, or otherwise than in conformity with the terms and conditions of, a licence (granted by the Director when a Market Committee has not yet started functioning; and in any other case, by the Market Committee) in this behalf, - (a) use any place in the market area for the marketing of the declared agricultural produce, or (b) operate in the market area or in any market therein as a trader, commission agent, broker, processor, weighman, measurer, surveyor, warehouseman or in any other capacity in relation to the marketing of the declared agricultural produce. ...... ...... 10(1). For the purpose of settling disputes between buyers and sellers, or their agents, including any disputes regarding the quality or weight or payment of any agricultural produce, or any matter in relating to the regulation of marketing of agricultural produce in the market area, the Market Committee of the area shall 11 constitute a Dispute Sub Committee. ...... ...... 29(2). Without prejudice to the generality of the foregoing provisions, a Market Committee may - (i) .... (ii) supervise the behaviour of those who enter the market for transacting business. ..... ..... (vii) regulate the making, carrying out and enforcement or cancellation of sales, weighment, delivery, payment to be made in respect thereof and all other matters relating to the marketing of notified agricultural produce in the prescribed manner; ...... ...... (xx) keep a set of standard weights and measures in the market against which weighment and measurement may be checked. (xxi) inspect and verify scales, weights and measures in use in a market area and also the books of accounts and other documents maintained by the liciensees in such manner as may be prescribed. (xxii) employ the necessary number of officers and servants for the efficient implementation of the provisions of this Act, rules and bye-laws of the Market Committee. 12 30A. (1) ..... (2) ..... (3) The Market Committee shall, on the sale of such produce, get it weighed, measured, or as the case may be, counted forthwith, and arrange for issuing a receipt thereof to the person who has tendered the produce at the collection centre for sale or, as the case may be, through the commission agent or any agency fixed by the State Government where tender through an agent is allowed, and shall also arrange to give a copy of the receipt to the purchaser, the co-operative society, if any, and where a receipt is given through such agent or agency, if any, also to the Market Committee. 4) Such receipt shall contain the following particulars, that is to say - ..... ..... (v) the names and quantity of notified produce, the weight, measure or number thereof and charges therefor,” 17. There can be little, if any doubt, that the provisions of the said Act do not establish an employer-employee relationship between the Petitioner on the one hand and the weighman or measurer or any other person referred to therein, on the other. Indeed, the provisions of the said Act militate against an employer-employee relationship between the Petitioner and a weighman who is granted a licence in terms of the said Act. The provisions are specifically in relation to the grant of a licence by the Petitioner to the weighman and others for carrying out 13 their activities in the market area. 18. Under section 6, no person is entitled without or otherwise than in conformity with the terms and conditions of a licence to operate in the market area or in any market therein inter alia as a weighman. If the weighman is an employee of the Market Committee, there would be no need to grant a licence to him for carrying out the work of weighing. 19. Section 10 merely provides for the settlement of disputes between buyers and sellers or their agents including regarding weight of any agricultural produce or any matter in relation to the regulation of marketing or agricultural produce in the market area. It does not deal with the question relating to or even indicate factors regarding the existence of an employer-employee relationship between the weighman and the Market Committee. 20. Section 29(2)(vii) confers powers on the Market Committee to regulate the making and carrying out inter alia the work of weighment. Section 29(2)(xx)(xxi) and (xxii) empowers the Market 14 Committee to regulate and keep a control of the manner in which the work of weighment is to be carried out. These provisions also do not indicate an employer-employee relationship between the Petitioner No.1 and Respondent No.1. These provisions merely regulate the operation of the licence. Whether in the present case the licence executed was colourable and with a view to camouflage the real relationship between the parties as alleged by Respondent No.1 is a different matter altogether which would necessarily require evidence. The burden of proving the same would be on Respondent No.1. 21. As stated above, the Petitioner had earlier filed an application for the same reliefs in respect of himself, but as a President of the said union. The said application was dismissed by an order dated 7th December, 1978. While rejecting the Petitioner’s contention that the present application is barred by the principles of res judicata, the Labour Court held that while passing the earlier order the Labour Court had acted beyond its jurisdiction by arrogating powers on itself that it could adjudicate the issue and thereby wrongly assumed jurisdiction which it did not possess. If, according to the Labour Court, the earlier Labour Court had no such power, it is difficult understand how the present Labour Court also arrogated to itself the 15 jurisdiction to adjudicate upon this rather complicated issue in an application under section 33-C(2). 22. Mr. Jamdar relied upon an unreported judgment of this court in the case of The Agricultural Produce Market Committee Vs. Sureshprasad Nakhulal Tiwari & anr. dated 26th September, 1977 in Special Civil Application No.2128 of 1976. The facts of the case, however, are clearly distinguishable. In that case, notwithstanding the licence, the APMC had appointed the weighmen on a regular salary and a seniority list of these weighmen was maintained. The Petitioners before the Division Bench were shown in the seniority list at different serial numbers. Service books were also maintained with regard to these workers. Further, from time to time, the APMC passed resolutions increasing the salaries of these weighmen. They were also granted cost of living allowance and leave salary. A sub-committee was appointed for fixing their pay-scales. A resolution was passed to amalgamate eighty percent of the cost of living allowance in the basic pay of the weighmen and to raise their salaries with effect from 1st October, 1978. A resolution was passed fixing their pay scale at Rs. 55-3-85-4-105. The Division Bench, therefore, held that there was a 16 regular scale of pay and rate of increment granted to these weighmen. The services of these weighmen having been terminated, they raised a dispute under section 10-1(c) read with section 12(5) of the Industrial Disputes Act, 1947. The Deputy Commissioner of Labour made three References in respect of three weighmen before the Division Bench. Evidence was led on behalf of the weighmen, inter alia, to the above effect. Upon a consideration of the entire material, the Labour Court rejected the APMC’s contention that the weighmen were not it’s employees. The Division Bench held that the APMC had the power to appoint weighmen as regular employees. Mrs. Kanade did not contest this position. What is important, however, is that the Division Bench observed that the APMC could not get out of the “factual aspect” referred to earlier which indicated the existence of an employer- employee relationship between the weighmen and the APMC in that case. This, the Division Bench held, was established on the basis of 17 the facts of that case which I have referred to earlier. 23. I do not read the judgment of the Division Bench to hold that weighmen in all cases would be employees of APMC irrespective of the facts of the case and the relationship between the parties. All that the Division Bench has held is that the APMC was also entitled to appoint weighmen as its employees and nor merely as licencees. 24. I must, however, clarify that I have not come to any conclusion as to whether or not there exists an employer-employee relationship between Petitioner No.1 and Respondent No.1. The views expressed above are only prima facie and for the purpose of holding that a question of this nature in the facts and circumstances of the present case could not have been adjudicated in an application under section 33-C(2) of the Industrial Disputes Act. It will, therefore, be open to the Respondents to adopt appropriate proceedings if they so desire to establish their rights, if any. Needless to add, all the contentions between the parties in this regard are kept open and will be considered in such proceedings. 18 25. Subject to the above clarification, Rule is made absolute in terms of prayer clauses (a) and (c). There shall be no order as to costs.