1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.1739 OF 2002 Shri.Babi Sadashiv Pawar & Ors. ..Petitioners. Vs. Maharashtra Electronics & Ors. ..Respondents. ... Mr.R.D.Bhat for the Petitioners. CORAM : DR.D.Y.CHANDRACHUD, J. CORAM : DR.D.Y.CHANDRACHUD, J. CORAM : DR.D.Y.CHANDRACHUD, J. 29th April, 2005. P.C. : 1. The Industrial Court has dismissed a complaint under Items 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Industrial Court has held that the four Petitioners were contract employees in respect of whom the relationship of employer and employee with the First Respondent is not undisputed or indisputable. Consequently following the law laid down by the Supreme Court in Vividh Kamgar Sabha v. 2 Kalyani Steels Ltd. (2001 I CLR 532) and in Cipla Limited v. Maharashtra General Kamgar Union (2001 (I) CLR 754), the complaint has been held not to be maintainable. 2. A brief reference to the pleadings and to the evidence would be in order. The case of the Petitioners in the complaint before the Industrial Court was that they were employed by the First Respondent, but were camouflaged to be employees of the contractor. The First Petitioner was in service from 18th August, 1987, the Second Petitioner from 16th September, 1988, the Third Petitioner from 15th February, 1991 and the Fourth Petitioner from 18th April, 1993. The complaint proceeded on the basis that in order to avoid conferring permanency and other conditions of service applicable to the regular employees of the First Respondent, the First Respondent had entered into a sham contract with contractors from time to time and that the Petitioners were being appointed allegedly on a contract basis. Among the documents that were appended with the complaint were attendance cards which showed that the workmen were contract employees. The complaint then adverts to 3 a representation submitted by the contract workmen for the regularization of their services on 6th February, 1996. 3. Hence, it would appear from the complaint that the case of the workmen was that the contracts under which they were employed were sham and that this was only a camouflage that was resorted to by the employer. The contractor was impleaded as the Fourth Respondent and it was stated that though the contractors have changed from time to time, the complainant workmen continued to work allegedly as contract workers. The contractor according to them came to the premises at the end of the month to effect payment of wages. According to the complainants certain other contract workers have been absorbed. Among the reliefs which have been sought in the complaint, was a direction that the four workmen should be treated as employees of the First Respondent from the respective dates of their initial appointment. 4. The First Respondent specifically disputed the relationship of employer and employee with the four workmen. It was stated that the 4 workmen were engaged by the Fourth Respondent whose contract was terminated with effect from 31st August, 1997. Evidence has been adduced before the Industrial Court, both on behalf of the workmen and on behalf of the employer. The Labour Court noted that among the documents on the record was an application made by 15 contract employees including the complainant workmen and the very title of the representation related to "contract workers in Meltron". The employer filed an agreement dated 2nd September, 1997 with the contractor. So also there was a copy of the wage register of the Fourth Respondent wherein the names of the complainant workmen appeared. The wage register bore the signatures of the complainants. Broadly speaking the evidence of the complainant workmen consists of an admission that when they were originally engaged, no call letters were received from the First Respondent. The first complainant admitted that he was working through the Fourth Respondent, the contractor with the First Respondent. The workmen admitted that they have described themselves as contract employees in the representation made to the First Respondent. 5 Similarly, there was an admission to the effect that the wage registers bore the names of the complainant workmen. No leave cards were issued by the First Respondent. 5. On this state of the record, the conclusion which has been drawn by the Industrial Court cannot be faulted. In Cipla (supra) the Supreme Court held that if the case put forth by the workmen was that they had been directly employed by the appellant but the contract itself is a camouflage, this was a matter which needed to be adjudicated upon and was not something which could be examined in the course of a complaint under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Supreme Court held that unless it is undisputed or indisputable that there is an existence of an employer-employee relationship, the question of unfair labour practices cannot be enquired into at all. The earlier view in Vivid Kamgar Sabha was reiterated. This position in law has been reiterated in two Division Bench judgments of this Court in Hindustan Coca Cola Bottling S/W 6 Pvt. Ltd. v. Bhartiya Kamgar Sena (2001 III CLR 1025) and Quadricon Pvt. Ltd. v. Maxi D’Souza (2005 I LLJ 75). In the recent judgment in Quadricon (Supra) the Division Bench held that the Industrial Court must consider whether the relationship of employer and employee is unquestionable on the basis of the pleadings and the material available. In the present case, the Industrial Court held that on a review of the pleadings and the evidence the relationship of employer and employee is not undisputed or indisputable and that in fact the Petitioners were contract employee. This being the position, it was necessary for the Petitioners to adopt proceedings under the industrial law either for an adjudication of their claim that the contract was a camouflage and sham or for establishing the relationship of employer and employee with the First Respondent. It is in that context that the Industrial Court observed that from the oral and documentary evidence, there was ample evidence to help the complainants to establish the relationship of employer and employee. The Industrial Court justifiably held that the establishment of the relationship of employer and employee could not be 7 carried out in the course of a complaint of unfair labour practice under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. These observations of the Industrial Court in paragraph 30 must be read and treated in the context in which they have been made. They do not suggest that the Industrial Court was of the view that the relationship of employer and employee was undisputed or indisputable. On the contrary, the entire discussion in the judgment and order of the Industrial Court emphasizes at several places that the status of the complainant workmen was that of contract employees, something of which they were themselves aware. 6. Hence, the complaint was not maintainable and has been correctly rejected by the Industrial Court. The rejection of the complaint, however, will not come in the way of the complainants adopting appropriate proceedings for seeking a reference to adjudication under Section 10 of the Industrial Disputes Act, 1947. In the circumstances, there is no merit in the Petition which is rejected. There shall be no order as to 8 costs.