bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 7987 OF 2007 PETITION NO. 7987 OF 2007 PETITION NO. 7987 OF 2007 1. Nashik Municipal Corporation, Nashik 2. Administrative Officer, Education Board, Nashik Municipal Corporation (School Board). ... Petitioners v/s Shri Pravin Dhondiram Dolas & ors. ... Respondents Ms.Manisha Shekhar i/by M/s.J. Shekhar & Co. for the petitioners. Mr.M.S.Topkar for respondent Nos.1 to 53. Mr.S.N.Patil, A.G.P. for Resp.Nos.54 and 55. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 10TH SEPTEMBER, 2008 10TH SEPTEMBER, 2008 10TH SEPTEMBER, 2008 P.C. P.C. P.C.: 1. The petition has been filed challenging the award passed by the Industrial Court on 27.4.2007 in Reference (IT) No.6 of 2004. It is contended by the petitioners that the workmen were not employed by the petitioner No.1 i.e. the Nasik Municipal Corporation but by the School Board i.e. petitioner No.2 and, therefore, Nasik Municipal Corporation cannot be directed to reinstate them in service. A contention is also raised that the workmen were employed by the School Board through a 2 contractor and because a Government Resolution was issued on 3.9.1993 for abolition of the contract labour, their services came to be terminated. It is contended that the petitioners came to know of the Government Resolution having been issued much later and, therefore, the services of these workmen were terminated on 17.4.2001. 2. The learned advocate for the petitioners contends that neither the Corporation nor the School Board can be directed to reinstate the workmen. She submits that the Nasik Municipal Corporation was never the employer of the concerned workmen. It is further submitted that the School Board was not permitted to employ them in view of the Government Resolution of 1993 for abolition of contract labour. The learned advocate submits that unless Government sanctions posts, the workmen cannot be absorbed. 3. In my opinion, these submissions cannot be accepted. The order of reference indicates that the Tribunal was to adjudicate whether the 53 workmen who are employed by the petitioners were entitled to be reinstated with continuity of service and full back wages. The Tribunal has found that the reference is maintainable and that it has jurisdiction to entertain the reference. In para 7 3 of the award, the Tribunal has considered the fact that the petitioners neither placed on record the licence issued to the contractor or any agreement entered into between themselves and the contractor. No details regarding the contract were specified. Thus, on evidence, the Tribunal came to the conclusion that the workmen were employed by the petitioners directly. The Tribunal has also considered that the witnesses examined by the petitioners had not stated anything with regard to the agreement between the petitioners and the contractor or about the licence issued to the petitioners to engage contract labour as security guards. In these circumstances, the Tribunal has concluded that the workmen were engaged by the petitioners and were entitled to the relief of reinstatement. 4. Mr.Topkar, learned advocate for the petitioners refers to the judgment of the Supreme Court in the case of Indian Farmers Fertilizer Co-op. Ltd. v/s Indian Farmers Fertilizer Co-op. Ltd. v/s Indian Farmers Fertilizer Co-op. Ltd. v/s Industrial Industrial Industrial Tribunal, 1 Allahabad & ors., reported in Tribunal, 1 Allahabad & ors., reported in Tribunal, 1 Allahabad & ors., reported in 2002 2002 2002 I C.L.R. 1106, I C.L.R. 1106, I C.L.R. 1106, wherein the Supreme Court has observed thus - "5. Before us, the contentions urged before the High Court are reiterated. The learned counsel for the appellant urged that the tribunal had travelled far beyond the scope of the reference 4 inasmuch as the question referred to it was only limited as to whether the appellant had wrongly terminated the services of 88 workmen. The question whether 88 workmen were employees of the appellant was completely outside the scope of the reference. Even otherwise, the findings recorded by the tribunal had been recorded ignoring completely the material evidence on record and in this context, the learned counsel relied upon the decision in Steel Authority of India v/s V.S.Yadav (1987 (55) F.L.R. 268). The claim of the workmen has been that they have been employed by the appellant. When the stand of the appellant is that the workmen were not employees of the appellant but they were working under a contractor, necessarily the issue arose as to the nature of their employment inasmuch as the relief that would be granted to them would depend upon the same. In the circumstances, the nature of their employment, whether directly under the appellant or through the contractor, was necessarily to be decided. Even otherwise, a full reading of the reference would show that there was no indication that they had been employed by a contractor but their services had been terminated from the respective date shown against them and whether the same was justified or not. In such a case, when a question was raised that the workmen in question were not the employees of the appellant, necessarily the tribunal had to go into the question whether they were the employees of the appellant or not. On due appreciation of evidence, the tribunal came to the conclusion that they are the employees of the appellant and that finding of fact was based on evidence. In our opinion, the conclusion reached by the tribunal could not be seriously assailed by the learned counsel for the appellant. We find no justification to interfere with the award as affirmed by the High Court." The contentions raised by the petitioners in the present petition are similar to the contentions raised by the employer in the aforesaid case before the Supreme Court. 5 5. In my view, therefore, the Tribunal has not committed any error in allowing the reference. The Tribunal has granted reinstatement from 18.8.2004. It has not granted continuity of service to the workmen. Wages are made payable from the date of the reference till their actual reinstatement. 6. Writ petition rejected.