IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3435 OF 2009 WRIT PETITION NO. 3435 OF 2009 WRIT PETITION NO. 3435 OF 2009 M/s.Eaton Industrial Systems Pvt.Ltd. ...Petitioner vs. Bharatiya Kamgar Sena ...Respondent Mr.A.D. Patwardhan for the Petitioner. Mr.M.D. Nagre for the Respondent. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : APRIL 8, 2009 DATED : APRIL 8, 2009 DATED : APRIL 8, 2009 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the petitioner and Counsel for the respondent. 2. The petitioner is challenging order passed by the Industrial Court in Complaint (ULP) No.206 of 2008 in Interim Application below Exhibit U-2. 3. The complainant Bhartiya Kamgar Sena filed a complaint under Section 28(1) read with Items-6, 9 and 10 of the Scheduled IV of MRTU and PULP Act, 1971 for declaration of unfair labour practices committed by the respondent company. Alongwith the said complaint, the application for interim relief was also filed. In the - 2 - said application, interim relief was granted and the company was directed not to disturb the employment of the workers mentioned in Annexure A and they shall to be continued on work as usual, without prejudice to the right of the respondent company in the complaint. The hearing of the main complaint was also expedited. 4. Counsel for the petitioner submitted that in the complaint itself, a specific averment was made in para 10 that the contractors themselves were bogus and that the petitioner herein was appointing some workers as contractors and were getting the work done through these so called contractors. It was submitted that therefore from the averment in the complaint, it was very clear that there was no relationship of employer and employee between petitioner and respondent and therefore, the complaint itself is not maintainable in view of the Judgment of the Apex Court in the case of Vividh Kamgar Vividh Kamgar Vividh Kamgar Sabha vs. Kalyani Steels Ltd. & Anr., reported in 2001 Sabha vs. Kalyani Steels Ltd. & Anr., reported in 2001 Sabha vs. Kalyani Steels Ltd. & Anr., reported in 2001 I CLR 532 I CLR 532 I CLR 532. It was submitted that without deciding the said issue, the interim order has been passed in favour of the respondent herein. - 3 - 5. In my view, the said issue can be decided either on application filed by the petitioner regarding the maintainability of the complaint or through the complaint itself be decided, expeditiously at the time of the said complaint. At this stage, in my view, no case is made out for interfering with the impugned order passed by the court below. It is clarified that the petitioner company will be at liberty to take out such proceedings against these respondents on account of any misconduct on their part. All the contentions raised by the petitioner in this petition are kept open. The complaint already has been expedited by the Labour Court itself. However, it is clarified that the said complaint be decided, expeditiously, by the Labour Court. 6. Counsel for the petitioner has relied on the judgment of this Court in Maharashtra State Co-op. Maharashtra State Co-op. Maharashtra State Co-op. Cotton Growers Mkt.Federation Ltd. vs. Asha Joseph Cotton Growers Mkt.Federation Ltd. vs. Asha Joseph Cotton Growers Mkt.Federation Ltd. vs. Asha Joseph D’mello, reported in 2007 III CLR 982. D’mello, reported in 2007 III CLR 982. D’mello, reported in 2007 III CLR 982. The ratio of the said judgment will not apply to the present case since - 4 - this Court has taken into consideration the final order passed by the Industrial court on the complaint filed by the respondent therein. 7. The writ petition, accordingly, is disposed of in the aforesaid terms. Liberty is given to the petitioner to apply for expeditious hearing of the case. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)