:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1377 OF 2008 Managing Director Krishna Sahkari Sakhar Karkhana Ltd. ..Petitioner Vs. Shri Subhash Mahadeo Patil ..Respondent Mr. Rajesh Gehani with Ms. Suchita Kamble for petitioner. Mr. L.S. Deshmukh for respondent. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : February 29, 2008. Date : February 29, 2008. Date : February 29, 2008. P.C.: P.C.: P.C.: 1. Heard the learned counsel for the petitioner. Mr. Deshmukh appears for the respondent. 2. The Complaint (ULP) No.101 of 2005 the Labour Court at Satara allowed the application at Exh. U-2 and Exh. 34 by its order dated 2/1/2006 and 31/1/2006 respectively. Both the orders came to be challenged :2: in Revision Application (ULP) No. 29 of 2006 and the said revision has been dismissed by the Industrial Court at Satara on 31/12/2007. Hence, this petition. 3. The order passed below Exh.U-2 on 2/1/2006 directed the present petitioner to allow the complainant to work on his previous post temporary till the final decision in the main complaint and by the order passed below Exh.34 a Court Commissioner came to be appointed to accompany the complainant to go to the respondent-Karkhana for the purpose of joining of his duties. This application at Exh.34 was filed on the allegation that after the application at Exh.U-2 was allowed and when the complainant reported at the Karkhana for duty, the Managing Director did not allow him to join duties and asked him to go to the Labour Officer, but the Labour Officer did not issue any order either orally or in writing to Agricultural Officer for allowing the complainant to join his duties. The complainant claimed that he had subsequently sent letters by RPAD and there were no response. :3: 4. The learned counsel for the petitioner-Karkhana submitted that the Karkhana disputed the status of the complainant and prayed before the Labour Court to decide the preliminary issue as to whether the complainant is an employee within the meaning of Section 3(5) of the M.R.T.U. & P.U.L.P. Act, 1971 and unless the said issue was decided it was not permissible for the Labour Court to entertain and allow the application at Exh.U-2. However, it is clear that no application was filed by the petitioner-Karkhana requesting the Labour Court to frame such a preliminary issue regarding the status of the complainant and decide the same. Along with this petition at Exh."E" an application claimed to be preliminary objection application has been annexed and the prayer there in reads, "The interim relief application & complaint filed by the complainant may kindly be dismissed with cost." . Obviously this is not an application praying before the Labour Court to frame and decide the :4: preliminary issue whether the complainant meets the requirements of the term "employee" as defined under Section 3 (5) of the M.R.T.U. & P.U.L.P. Act, 1971, which means Section 3(13) of the Bombay Industrial Relations Act, 1946. If such an application is filed obviously the same has to be decided along with all other issues during the trial of the complaint, more so when it is well settled in law that the same issue is a mixed question of fact and law and, therefore, parties will have to be allowed to lead evidence. The petitioner-Karkhana has to blame itself and no fault could be found with the Labour Court or the Industrial Court in passing the impugned orders. I, therefore, do not find any case to cause interference under Article 227 of the Constitution in the concurrent views taken by both the courts below on the application at Exh.U-2 and Exh.34. 5. Hence, the petition is dismissed summarily. Trial of Complaint (ULP) No. 101 of 2005 is directed to be completed as expeditiously as possible and preferably by 31st July, 2008. If the petitioner-Karkhana files an application to frame and :5: decide the preliminary issue as to whether the complainant is an employee within the meaning of Section 3(13) of the B.I.R. Act within a period of two weeks from today, the same issue shall be heard and decided along with all other issues while deciding the main complaint. 6. Writ to go forthwith to the Labour Court. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)