1 W.P.No.3607.98 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3607 OF 1998 Shri Gulab Namdeo Misal ... Petitioner v/s M/s.EKO Industries, Thane ... Respondent Mr.S.N.Deshpande with Mrs.S.P.Munshi for the petitioner. Mr.Mahesh Londhe i/by M/s.Sanjay Udeshi & Co. for respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 27TH OCTOBER, 2010 ORAL JUDGMENT: 1. The petition has been filed by an aggrieved workman contending that the order of the Industrial Court dismissing his complaint filed under Items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (in short, “the M.R.T.U. & P.U.L.P. Act), is bad in law. 2. The facts giving rise to the present petition are as follows:- 2 W.P.No.3607.98 The petitioner was employed since 1989 as a welder. He claims that he was employed with the respondent which is a proprietory concern. He was prevented from reporting from duty, according to the petitioner, without any order of termination of service being issued to him. This happened on 28.9.1991. He therefore filed a complaint being Complaint (ULP) No.45 of 1992 under Items 9 and 10 of Schedule IV of the MRTU & PULP Act on 20.1.1992. The complaint was filed against M/s.EKO Industries and Jayesh Mehta, the proprietor of M/s.EKO Industries. An affidavit was filed by Shirish Kothari, proprietor of M/s.EKO Industries in which he stated that the complaint was not maintainable as although he was the proprietor of the EKO Industries he had not been made party respondent in the complaint. He therefore contended that the complaint suffers from misjoinder of parties as Jayesh Mehta was not the proprietor of EKO Industries. On merits he has stated that the petitioner was never employed by him and that there was no employer- employee relationship between him and the petitioner. He has also pleaded that the complaint was barred by limitation as it had been filed beyond the period of 90 days from the date of the alleged termination of employment. No application for condoning the delay had been preferred by the petitioner and, therefore, it was pleaded that the 3 W.P.No.3607.98 complaint be dismissed. It was also prayed that the Industrial Court should first decide the preliminary issue regarding the maintainability of the complaint. This affidavit is treated as the written statement filed on behalf of M/s.EKO Industries. 3. The petitioner then filed attendance cards which he claims were issued by M/s.EKO Industries during his employment with that firm. He led oral evidence in Court. EKO Industries examined three witnesses, Shirish Kothari, Jayesh Mehta and Sukumaran Prajapati, before the Industrial Court. 4. On the basis of the evidence led before it, the Industrial Court dismissed the complaint. It was of the view that since the employer and employee relationship was denied by EKO Industries, the complaint was not maintainable. The documents, namely, the muster cards produced by the workman were scrutinized by the Industrial Court and it was found that these documents were “suspicious” and, therefore, the preponderance of possibilities show that there was no employer-employee relationship between the EKO Industries and the petitioner. The Industrial Court found that Jayesh Mehta who was impleaded as respondent No.2 in 4 W.P.No.3607.98 the complaint by naming him as the proprietor, had no concern with the EKO Industries. The Industrial Court then concluded that since there was a termination of service, it had no jurisdiction to decide the issue as the complaint under Item 9 of Schedule IV was not maintainable. 5. The first issue which is material and goes to the very root of the complaint is whether a complaint filed against a proprietary concern is maintainable when the proprietor is not impleaded as a party to that complaint. Mr.Deshpande appearing for the petitioner has submitted that the complaint discloses that the proprietor has been joined as a party respondent. However the complaint could not be dismissed on this ground only because he chose to deny that he was the proprietor of the firm, according to Mr.Deshpande. The issue regarding the maintainability of the complaint on this ground has not been seriously agitated by the respondent, submitted Mr.Deshpande. 6. It has been argued by Mr.Londhe appearing for the EKO Industries that the petition itself is not maintainable since the parties to the complaint have not been joined as a party to the petition. He pointed out that Jayesh Mehta though a party to the complaint has not been joined as a 5 W.P.No.3607.98 party to the petition. He submitted that in any proceeding filed against a proprietary firm it is necessary to implead the proprietor as he is a necessary party. He relies on the judgment of the Gujarat High Court in the case of Satish Jayantilal Shah v/s State of Gujarat, reported in 1999 Company Cases 303, in support of this proposition. He also drew my attention to the relevant provisions of the Partnership Act in support of his contention. 7. In my view, the submission of Mr.Londhe must be accepted. There was a categorical statement made by Shirish Kothari on affidavit that he was the proprietor of EKO Industries and not Jayesh Mehta. This fact was corroborated by an affidavit filed by Jayesh Mehta. Despite this, the workman took no steps to join Shirish Kothari as a partner to the complaint. It is now well settled that legal proceedings against a proprietary firm can be initiated only if they are instituted against the proprietor as well as the firm or the proprietor alone. The firm by itself cannot be made a party respondent as it has no independent legal existence without the proprietor. Therefore the complaint should have been dismissed on this ground as well. Further more, no explanation has been given by the petitioner as to why Jayesh Mehta has not been joined as a party to the present petition when he was party to the complaint. 6 W.P.No.3607.98 8. The second issue which arises is, whether a complaint is maintainable when the allegation of the petitioner is that his services were terminated. Mr.Deshpande tried to draw a fine distinction between the “termination of service” and stopping a workman from working or not permitting a workman to carry out his duties. He submitted that if there is a termination of service by issuance of a written order, a complaint to agitate such a grievance would be maintainable under Item 1 of Schedule IV of the MRTU & PULP Act. He further submits that when there is a termination of service without following the statutory provisions of law, a complaint under item 9 of Schedule IV of the MRTU & PULP Act is maintainable. The Industrial Court in such a case can grant the relief of reinstatement with continuity of service and back wages. He has relied on several judgments which I will advert to presently. 9. Mr.Londhe has argued that, for a complaint under item 9 of Schedule IV of the MRTU & PULP Act to be maintainable, certain ingredients must be fulfilled, namely, (i) there must be an employer-employee relationship, (ii) there must be an agreement, settlement or an award and (iii) there must be a breach of such settlement, agreement or an award. According to him, the complaint filed by the 7 W.P.No.3607.98 petitioner does not disclose that all these ingredients have been fulfilled and, therefore, the complaint is not maintainable. 10. Mr.Deshpande has argued that no objection regarding the maintainability of the complaint on the ground that the termination from service can only be challenged under item 1 of Schedule IV of the MRTU & PULP Act has been raised before the Industrial Court in the written statement filed. He points out that it was a contention raised by the respondent when arguments were advanced. According to him, therefore, such a contention need not be considered at all in view of the judgment of the Supreme Court in the case of S.S. Sharma v/s Union of India, reported in 1981 Lab.I.C. 131. 11. The Supreme Court was considering whether a contention could be raised in a writ petition assailing the validity of an office memorandum when no ground, had been taken in the writ petition. The Court opined that ordinarily the Courts should insist on parties being confined to their specific pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well known process of formally applying for 8 W.P.No.3607.98 amendment. The Court has observed that though there is no strait jacket approach which the Courts must follow, they must uphold the procedure well known to the law and long established codified practice. This was because permitting new points to be raised during the oral submissions would tend to cause grave injury to a contesting party by depriving it of an opportunity of adequately preparing its response. 12. This judgment, in my opinion, has no applicability to the facts in the present case. The issue here is not of new facts being pleaded. The issue is of jurisdiction of the Court. It is now well settled that a Court while deciding a matter must consider suo moto whether it has jurisdiction to decide the procedure. Therefore, the issue of maintainability of the complaint on the ground as to whether the Industrial Court or a Labour Court would have jurisdiction to decide the question of termination of service is not a matter which requires pleadings but is a question of law. 13. Mr.Deshpande has then pointed out that when the employer admits that there is no termination of service or does not specifically states that the services of the workman are terminated or where there does not exist any written order of termination of service, a complaint under Item 9 of 9 W.P.No.3607.98 Schedule IV of the MRTU & PULP Act is maintainable. He relies on the judgments in (i) Premier Automobiles Employees’ Union v/s The Premier Automobiles Ltd., reported in 1987 1 C.L.R. 302, (ii) Sitaram Dhondoo Hadkar v/s NTC(SM) Ltd., reported in 2004 III C.L.R. 153, (iii) Supriya Suresh Gugre v/s R.U. Ingule, reported in 2002 (3) C.L.R. 82. On the other hand, Mr.Londhe relied on the judgments in (i) Pepsico India Holdings Pvt. Ltd. v/s Noshir Elavia & anr., reported in 2002 I C.L.R. 953. In the case of Premier Automobiles case (supra), a learned Single Judge (Bharucha, J. as he then was) has held that when the workman makes himself available to the employer to do his work and the employer fails to pay wages, there is a breach of the agreement between them and thus the employer would be guilty of not implementing his agreement with the employee. Therefore, in such a case, the employer commits an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act. However, this judgment does not deal with the termination of employment. 14. In the case of Sitaram Dhondoo Hadkar (supra), a learned Single Judge of this Court (Khandeparkar, J.) has held that merely because the employer refuses an employee 10 W.P.No.3607.98 permission to attend his duties or to work, it would not be an act in consonance with the Standing Orders in the absence of specific provisions in that regard in the Standing Orders. Therefore, it has been held in such circumstances it would not be a termination of service as provided under the Standing Orders. These observations were made in respect of a challenge to the order of termination in proceedings under Section 78 of the B.I.R. Act. Similarly, in the case of Supriya Suresh Ghugre (supra), a learned Single Judge of this Court (Kochar, J.) has observed that when none of the parties claim that the services of the workman were terminated, a complaint under Item 9 of Schedule IV of the MRTU & PULP Act was maintainable, especially when there is a violation of a statutory provision. 15. In the case of R.K.Shinde & ors. v/s Shekoba Auto Pvt. Ltd. & anr., reported in 2008 I C.L.R. 996, the Division Bench of this Court has set aside the judgment in Pepsico’s case and has held that once an order of retrenchment was passed in breach of statutory provisions of law, an unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act is committed. 16. Therefore, taking a conspectus of the aforesaid decisions, it is possible to contend that the complaint under 11 W.P.No.3607.98 Item 9 of Schedule IV of the MRFTU & PULP Act is maintainable when either the parties to the complaint do not plead that there is a termination of service, or there is a breach of statutory provisions of law while terminating the services of the employee. In the present case, though it is contended by Mr.Deshpande that neither the workman nor the employer have stated that the workman has been terminated from service, the facts involved indicate otherwise. The workman has stated in his complaint that he was not permitted to work nor was he assigned or allotted any work. Mr.Shrish Kothari who is the proprietor of the firm has stated that the workman was not his employee and therefore the question of terminating his services did not arise. The inference that Mr.Deshpande wants me to draw from this statement is that the employer has not stated that he terminated the services of the workman. Had the employer accepted the petitioner as his employee and stated that he had not terminated his services, then a complaint under Item 9 could possibly have been maintained. All the judgments relied on by Mr.Deshpande in support of his submission that a complaint under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act is maintainable presuppose that there exists an undisputed employer-employee relationship. 12 W.P.No.3607.98 17. However, in this case, the employee-employee relationship has been denied by the EKO Industries. Mr.Londhe has relied on the judgment in the cases of Cipla Ltd. v/s Maharashtra General Kamgar Union & ors., reported in AIR 2001 SC 1165 and Vividh Kamgar Sabha v/s Kalyani Steels Ltd., reported in 2001 I CLR 532 (SC), in support of his contention that when such a contention is raised by the employer, a complaint under the MRTU & PULP Act is not maintainable. He pointed out that in all these judgments the Supreme Court has held that unless there is an undisputable relationship between the employer and the employee, a complaint under the MRTU & PULP Act is not maintainable. He pointed out that the written statement filed by Shirish Kothari, proprietor of the firm does not indicate that he contends that the petitioner was employed through a contractor for working on the terms of EKO Industries. Therefore, the complaint is not maintainable. 17. The Industrial Court, on the basis of the evidence before it, has found that there was not a single document to establish the employer-employee relationship between the petitioner and the EKO Industries. The muster cards which 13 W.P.No.3607.98 were produced, have not been accepted by the Court. Cogent reasons have been mentioned by the Court for not accepting these muster cards. One muster card showed that it was issued by M/s. EKO Industries and was signed by one Prajapati. He has been examined before the Industrial Court and has conceded that the workman was his employee. Prajapati has deposed he was a contractor and he had employed certain workers including the petitioner. Another card which was produced, showed the name of S.S.Fabricators. There is evidence on record that S.S.Fabricators was also a contractor. There are some cards in the name of M/s.EKO Industries. They have been signed by Prajapati as well as Jayesh Mehta. The Industrial Court has considered all these documents and found that they did not inspire confidence and has, therefore, discarded. In my opinion, this decision of the Industrial Court is not perverse and, therefore, can be accepted. 17. In my opinion, the Industrial Court has committed no error in dismissing the complaint. The complaint was not maintainable on several grounds. Firstly, the proprietor had not been joined as a party to the complaint although he was a necessary party. Secondly, the complaint under Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act was not 14 W.P.No.3607.98 maintainable because the employer-employee relationship has not been established on evidence before the Industrial Court. The judgments in the cases of Kalyani (supra) and Cipla (supra) decided by the Supreme Court require the Industrial Court to dismiss the complaint immediately an objection is raised regarding its maintainability on the ground that there is no employer-employee relationship. The order of the Industrial Court in the present case was passed on 26.2.1998. It has considered the evidence led before it. On the basis of this evidence, it has concluded that the petitioner was unable to establish any relationship with the EKO Industries. 18. In these circumstances, the petition fails. Rule discharged. No order as to costs. ..... 15 W.P.No.3607.98