1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5921 OF 2009 Mahapalika Arogya Seva Karmachari Sanghatana .. Petitioner Vs Municipal Corporation of Greater Mumbai and others .. Respondents Mr. Prakash Devdas for the petitioner S.S. Pakale i/b R.R. Malandkar for respondent - corporation CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 17th August, 2009 P.C.: 1. Heard the learned counsel for the petitioner - union and the learned counsel for the respondent - corporation. 2. The petitioner union represents women health workers (CHVs) who are working for corporation on part time basis i.e four hours a day. The case of the petitioner is that these women health workers were eligible for promotion to the posts of clerk and allied cadres as Rma wp5921-09.sxw 2 per the promotion rules of the respondent corporation. Hence, they preferred applications for the posts of clerk. The said applications came to be rejected on the ground that there was a dispute relating to the fact whether voluntary women health workers were municipal employees or not and the case relating to the dispute was pending before the High Court, hence they were not eligible to appear for the posts of clerk and the applications were not accepted as they were not eligible. This was communicated by the respondent corporation by letter dated 21st September, 2007. The case of the petitioner is that the respondent by letter dated 21st September, 2007 has engaged an unfair labour practices i.e under item 5 and 9 of Schedule IV of the MRTU & PULP Act, 1971. Hence, they approached the Industrial Court for relief. The Industrial Court, by order dated 20th October, 2008 dismissed the complaint. Hence, this petition. 3. The learned counsel for the petitioner submitted that in the first part of the award, it has been held that there is employer-employee relationship and hence, the Industrial Court in order dated 20th October, 2008 could not have observed that there is serious dispute as Rma wp5921-09.sxw 3 to whether the workers are employees of the respondent corporation or not and whether there exists employer-employee relationship between the workers and the corporation. As far as this aspect is concerned, it is seen that the first part of the award is challenged by filing writ petition no. 8947 of 2004 which is pending before this Court. 4. The learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in M/s. Cox and Kings (Agents ) Ltd Vs Their Workmen and others, AIR 1977 SC 1966. He has placed reliance on Para 23 and para 26 of the said decision. However, the facts in the decision relied on and the facts in the present matter are entirely different and especially when in the present case, two writ petitions are pending before this Court, this decision cannot apply to the facts of the present case. 5. However, it is seen that the matter has been finally decided and hence, part I of the award would merge in the final award of the Industrial Tribunal. In respect of part I of the award, writ petition No. Rma wp5921-09.sxw 4 8947 of 2004 is pending before this Court and in respect of final award, writ petition no. 7958 of 2005 is pending before this Court. When the issue of employer-employee relationship is still pending for adjudication before this court, the learned member of the Industrial Court has rightly held that the union failed to make out prima facie case of unfair labour practices on the part of the corporation by rejecting the request of the union by letter dated 21st September, 2007. This view taken by the Industrial Court cannot be termed as perverse or patently erroneous. Looking to the fact that the two writ petitions mentioned above are pending, it cannot be said that the respondent corporation has engaged in unfair labour practice. In view of the above facts, no interference is called for in the order dated 20th October, 2008. Writ Petition is dismissed. (SMT. V.K. TAHILRAMANI, J) Rma wp5921-09.sxw 5 Rma wp5921-09.sxw