1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.537 OF 2008 Bharatiya Shramik Sangharsh Sabha. ..Petitioner. V/s. M/s. Maveric Knit Pvt.Ltd. & Ors. ..Respondents. Mr.N.M. Ganguli for Petitioner. Mr.Kiran Bapat i/b. Desai & Desai Association for Respondent Nos. 1 and 2. Mr.Rahul Nerlekar for Respondent No.3. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 7, 2008. DATE : MARCH 7, 2008. DATE : MARCH 7, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. Petitioner is granted leave to amend the cause title to indicate the correct name of the Petitioner as "Bharatiya Shramik Sangharsha Sabha". Amendment be carried out forthwith. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Bapat waives notice for Respondent Nos. 1 and 2. Mr.Nerlekar waives notice for Respondent 2 No.3. By consent, Petition is taken up for hearing forthwith as short question is involved. 4. This Petition takes exception to the Judgment and Order passed by the Industrial Court dated 23rd January, 2008 below Exh.U-2 and U-11 in Complaint(ULP) No. 17 of 2007. The Petitioner had filed the said Complaint asserting that the Respondent No.1 was employing all the workmen through contractor, who is doing permanent nature of work in the establishment of the Respondents. It is also asserted that the Respondent No.3 is an agent of the Respondent No.2, who happens to be the director of the Respondent No.1 company and acting as a contractor, who is carrying on his activities in the name and style of Respondent No.4. The Petitioner asserts that about 150 employees have been engaged in the employment of the Respondent No.1 through the contractor. As the Petitioner apprehended closure of the establishment, filed complaint alleging commission of unfair labour practice under item Nos. 1,4, and 6 of Schedule II and under item Nos. 9 and 10 of Schedule IV to the MRTU & PULP Act, 1971. The principal relief claimed in the Complaint is for declaration that the Respondents have engaged and are continuing to engage in the stated unfair labour 3 practice and for further orders to restrain the Respondents from engaging in any act of force and/or violence against the workmen whose names are mentioned in Annexure "A" to the Complaint and also to restrain the Respondents from locking out and/or closing the Respondent No.1 establishment as and by way of unfair labour practice; restraining the Respondent from terminating services of the workmen directing the Respondents to pay wages to the workmen employed by them at the rates prescribed by the Appropriate Government under the provisions of the Minimum Wages Act; directing the Respondents to pay overtime wages to the workmen employed by them at double the rate of normal wages as prescribed under the Minimum Wages Act; lastly, for direction against the Respondents to deduct Provident Fund contribution of the employees on the actual earnings of the workmen. 5. During the pendency of the said complaint, the Petitioners prayed for interim relief for injunction against the Respondent from terminating the services of the workmen whose names are mentioned in Annexure "A" to the complaint; for injunction from engaging in any act of force and/or violence against the workmen whose names are mentioned in 4 Annexure "A" to the complaint; for injunction from locking out and/or closing the Respondent No.1 establishment as and by way of unfair labour practice and/or without following due process of law; restraining the Respondents from disposing of, selling and/or putting any third party in possession of the machineries, goods, articles, furnitures and/or fixtures lying in the premises of the Respondent No.1 without prior permission of the Court; directing the Respondents to pay wages to the employees at the rates prescribed by the appropriate Government under the provisions of the Minimum Wages Act and to deduct PF contribution of the employees on the actual earnings of the workmen; and the incidental reliefs. 6. The Industrial Court by the impugned decision has rejected the reliefs claimed by the Petitioner against the Respondent Nos.1 and 2, but partly granted interim relief against the Respondent Nos. 3 and 4 requiring them to deposit the legal dues of the employees mentioned in the Annexure "A" to the Complaint in respect of whom there was no dispute about employer and employee relationship within one month from the date of the Order. In so far as the relief against the Respondent Nos. 1 and 2 is 5 concerned, presumably, the same is denied to the Petitioner on accepting the stand of the Respondent Nos. 1 and 2 that there was no employer-employee relationship between the employees involved in the complaint and the Respondent Nos. 1 and 2. If that finding is to be accepted as it is, then there is no difficulty in upholding the order passed by the Court below at this interlocutory stage. 7. However, having perused the Complaint and other materials on record and carefully examining the Judgment under appeal, I have no hesitation in taking the view that although the Industrial Court has adverted to the stand of the Respondent Nos. 1 and 2 that there was no employer-employee relationship between the employees involved in the Complaint and the Respondent Nos. 1 and 2, but has not elaborated on the said factual position. The complaint as filed explicitly states that the workmen referred in the Annexure "A" to the complaint were employed by the Respondent Nos. 1 through contractor, who is doing permanent nature of work in the establishment of the Respondent No.1. I am informed that in support of the plea taken by the Petitioners that the workmen were employed by the Respondent No.1, documentary evidence indicating the indisputable relationship 6 between the workmen and Respondent No.1 of employee and employer, was produced before the Industrial Court. However, no reference has been made to that effect in the impugned Judgment. 8. It is not necessary for me to elaborate further, as any expression recorded in this Order may affect the outcome of the proceedings pending before the lower Court and more particularly, for the nature of order that I propose to pass. In my opinion, the Industrial Court ought to have recorded prima facie opinion on the issue on the factum of relationship of employer and employee between the workmen referred to in Annexure "A" and the Respondent No.1 company as alleged by the Respondent Nos. 1 and 2 is indisputable or otherwise. Indeed, the Counsel for the Respondents would argue that there was no occasion for the Industrial Court to record any opinion in that behalf as it was not the case of the Petitioner that the engagement of contractor was a sham arrangement. It is not necessary for me to enter into this debate for the time being. 9. Suffice it to observe that the Industrial Court has not adverted to any material on record including the pleadings of the parties to positively 7 conclude on the factum as to whether the claim regarding relationship of employer and employee between the workmen and the Respondent Nos. 1 and 2 is indisputable or otherwise. 10. Indeed, the Industrial Court has referred to the Inspection Report but then has failed to analyse as to which of the employees referred to as workmen in Annexure "A" are disentitled for the relief as claimed. That is a factual aspect which ought to have been addressed by the Industrial Court in the first instance. 11. Be that as it may, the Industrial Court will also be obliged to consider the legal position stated by the Apex Court in the case of Hussainbhai V/s. Hussainbhai V/s. Hussainbhai V/s. Alath Factory Tezhilali Union and ors.(1978 Alath Factory Tezhilali Union and ors.(1978 Alath Factory Tezhilali Union and ors.(1978 LAB.I.C.1264) LAB.I.C.1264) LAB.I.C.1264). In that case, the workmen were hired by the contractor who had executed agreement with the establishment to undertake such work. While considering that situation, the Apex Court went on to observe that it is imperative to lift the veil or look into the conspectus of factors governing employment, so as to observe the naked truth though draped in different perfect paper arrangement, that the real employer is the Management, not the 8 immediate contractor. Counsel for the Petitioner has also placed reliance on the decision of the Apex Court in the case of Secretary, Haryana State Secretary, Haryana State Secretary, Haryana State Electricity Board V/s. Suresh and ors.(AIR 1999 S.C. Electricity Board V/s. Suresh and ors.(AIR 1999 S.C. Electricity Board V/s. Suresh and ors.(AIR 1999 S.C. 1160) 1160) 1160), which restates the legal position stated in the earlier decision of the Apex Court in the case of Hussainbhai(Supra) Hussainbhai(Supra) Hussainbhai(Supra). That can be discerned from the paragraph-6 to 9 of the reported decision. Counsel for the Respondents has argued that the exposition in this decision will be of no avail to the petitioner in the fact situation of the present case. However, that is a matter which will have to be considered by the Industrial Court on its own merits. 12. Suffice it to observe that I am more than convinced that the Industrial Court has not considered all aspects of the matter in the context of the stand taken by the Respondent Nos. 1 and 2 that there was no relationship of employer and employee between them and the workmen referred to in Annexure "A", but proceeded to answer the issue on the assumption that the said plea of the respondent Nos. 1 and 2 is correct. In the circumstances, the appropriate course to my mind is to set aside the impugned Judgment and relegate the parties before the Industrial Court for fresh consideration of Exh. U-2 9 and Exh.U-11, having regard to the observations made in this decision. The parties to appear before the Industrial Court on 28th March, 2008 at 11 a.m., on which date the Court may consider the argument of the parties for grant or non-grant of interim relief or defer the hearing to some other date convenient to it, while ensuring that the Application for interim relief is finally disposed of on or before 6th May, 2008. 13. It is made clear that all issues will have to be addressed by the Industrial Court on its own merits, uninfluenced by any observation in the impugned order or for that matter the present order. 14. The Respondent will be free to take out formal application before the Industrial Court praying for deciding the issue of maintainability of the complaint as a preliminary issue. The Respondents will also be free to apply before the Industrial Court for appropriate direction regarding disposal of the goods and raw materials lying in the factory premises, which request will be considered on its own merits. Till such order is passed no precipitative steps be taken by the Respondent in that regard. 10 15. Petition disposed off on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)