1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2889 OF 2003. 1. Raju Vishwanath Gaikwad, Aged 32 years, Occ.Unemployed, At Post : Bhingar, Tq. & Dist. Ahmednagar. 2. Madhukar Chandra Deovle, Age 34 years, Occ.Unemployed, At/Post : Bhingar, Tq. & Dist. Ahmednagar. 3. Laxman Bhau More, Age 38 years,Occ.Unemployed, At/Post : Nagapur, Tq. & Dist. Ahmednagar. 4. Sunil Visram Kadam, Aged 36 years, Occ.Unemployed, At/Post: Nagapur, Tq. & Dist. Ahmednagar. 5. Bagwan Dadu Suryawanshi, Aged 37 years, Occ.Unemployed, At/Post: Nagapur, Tq. & Dist. Ahmednagar. 6. Gopal Munsilal Pardesi, Age 31 years, Occ.Unemployed, At/Post: Fakirwada, Mukundnagar, Tq/Post: Ahmednagar. 7. Ashok Natha Takwale, Age 29 years, Occ.Unemployed, At/Post : Nagapur, Tq. & Dist. Ahmednagar. 2 8. Sakharam Ramchandra Dawale, Aged 28 years,Occ.Unemployed, At/Post: Nagar, Tq. & Dist. Ahmednagar. 9. Yunus Wazir Shaikh, Aged 28 years, Occ.Unemployed, At/Post:Bolegaon, Nagapur, Tq/Dist.Ahmednagar. 10. Liyakat Imam Shaikh, Aged 27 years, Occ.Unemployed, At/Post: Bolegaon, Tq. & Dist. Ahmednagar. 11. Parid Mohammed Shaikh, Aged 28 years,Occ.Unemployed, At/Post Bolegaon, Tq. & Dist. Ahmednagar. 12. Ratan Sudam Patole, Aged 32 years, Occ.Unemployed, At/Post : Nagapur, Tq. & Dist. Ahmednagar. 13. Madukar Madhav Bhakre, Aged 37 years, Occ.Unemployed, At/Post: Nagapur, Tq. & Dist. Ahmednagar. 14. Samad Imam Shaikh, Aged 32 years, Occ.Unemployed, At/Post : Bolegaon, Tq. & Dist. Ahmednagar. 15. Bhaskar Indraban Yadav, Aged 36 years, Occ.Unemployed, At/Post : Nagapur, Tq. & Dist. Ahmednagar. 16. Sikandar Wajir Shaikh, Aged 34 years, Occ.Unemployed, At/Post : Nagapur, Tq. & Dist. Ahmednagar. 17. Raju Mohan Chatrekar, Aged 29 years, Occ.Occ.Unemployed, At Post:Nagapur, Dist.Ahmednagar. 3 18. Ghyaneshwar Laxman Dele, Aged 28 years, Occ.Unemployed, At/Post : Sawedi, Tq. & Dist. Ahmednagar. 19. Shiv Dhular Pande, Aged 28 years, Occ.Unemployed, At/Post: Bolegaon, Tq. & Dist. Ahmednagar. 20. Aarif Sandu Shaikh, Aged 25 years, Occ.Unemployed, At/Post:Manolilanagar, Tq./Dist. Ahmednagar. 21. Sarjerao Paraji Dhombe, Aged 27 years, Occ.Unemployed, At/Post:Nagapur,Tq./Dist. Ahmednagar. 22. Mubarak Amin Sayyad, Aged 28 years, Occ.Unemployed, At/Post: Nagapur, Tq. & Dist. Ahmednagar. 23. Krishna Babasaheb Berad, Aged 26 years, Occ.Unemployed, At/Post Bolegaon, Tq. & Dist. Ahmednagar. 24. Kadir Ibrahim Patel, Aged 29 years,Occ.Unemployed, At/Post:Nagapur, Tq and Dist. Ahmednagar. ... Petitioners. Versus 1. Indian Seamless & Metal Tubes Ltd., C-1, Nagapur Industrial Area, Ahmednagar, through the Manager. 2. Sodhi Fabricators & Erectors, Near Sapkal Hospital,Savedi, 4 Dist. Ahmednagar. ... Respondents. ... Mr.P.L.Shahane, advocate for the petitioners. Mr.V.N.Upadhye, advocate for the Respondent No.1. Mr.K.N.Lokhande, advocate for the Respondent No. 2. ... CORAM : V.R.KINGAONKAR,J. Date : 18.07.2009. ORAL JUDGMENT 1. Challenging the order dated 5.11.2001, rendered by the learned Member of Industrial Court, Ahmednagar in Complaint (ULP) Nos. 269/1997, 358/1997, 34/1999, 35/1999 and 46/1999, 24 canteen employees have preferred this petition. They challenged dismissal of their complaint (ULP) No.358/1997 filed by them before the Industrial Court, Ahmednagar. It is not necessary to elaborately set out pleadings of the petitioners in their complaint (ULP) No.358/1997. Suffice it to say, that they asserted that the Respondent No.1 Company is under legal obligation to provide facility of canteen to the workers as provided under the Factories Act, 1948. The Respondent No.1 runs canteen and has control over 5 the functioning of the activity thereof, including employment of the canteen workers, to regularise their working hours, to streamline the service conditions so on and so forth. Though, the workers are employed through the canteen contractor, yet, they are employees of the Respondent No.1 - Company. They are shown to be employees of the canteen contractor only with oblique intention to avoid grant of benefits of the employment to them as per provisions of the Acts which are meant for the welfare of the workmen. The Respondent No.2 is nominal employee and though is shown as a canteen contractor, yet, the real employer is the Respondent No.1 Company. In other words, the services of the Respondent No.2 are being utilised by the Respondent No.1 Company for the purpose of masquerading the nature of employment and in order to avoid the laws which are beneficial to the workmen. The petitioners further alleged that they have completed more than 240 days continuous service as the workmen of the Respondent No.1 and were entitled to receive all the relevant benefits available to regular workmen of the Company. 6 They contended that there was strike of the workers in the year 1997 and thereafter the Respondent No.1 Company illegally terminated their services. They were not allowed to work in the canteen. Consequently, they filed the proceedings vide complaint (ULP) No.358/1997 for redressal of their grievances on the basis of terms of settlement which were arrived at between the Union of workers and the Management of the Respondent No.1. The Respondent No.1 submitted an application (C-56) in the proceedings of the said complaint case. The Respondent No.1 alleged that complaint (ULP) No.358/1997 was not maintainable and the Industrial Court had no jurisdiction to deal with the complaint because there was no employer-employee relationship between the parties. It was alleged that the canteen was not being run by the Respondent No.1 Company. It was contended that the petitioners could be termed as contractor labours since they were employed by the Respondent No.2, who is the contractor of the said canteen, and he is the employer but not the Respondent No.1 Company. The contention of the Respondent No.1 Company is 7 that the Industrial Court had no jurisdiction to deal with the complaint when the employer employee relationship is disputed. The Industrial Court could get jurisdiction only when such relationship is either admitted or otherwise not proved to exist in separate proceedings. 2. It is not necessary to consider the other complaint cases referred to in the common order passed by the learned Member of the Industrial Court. For, facts giving rise to the said complaint Cases bearing (ULP) Nos.269/97, 34/1999, 35/1999, 46/1999 are on different footings. 3. The learned Member of the Industrial Court held that the dispute regarding alleged unfair labour practices of the Respondent No.1 Company under items Nos.5,6,9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, MRTU and PULP Act) can not be taken cognizance of in absence of admission of employer employee relationship between the 8 parties or appropriate decision in this behalf in appropriate proceedings. The learned Member of the Industrial Court came to the conclusion that the jurisdictional issue could be tried as a preliminary issue and, therefore, the proceedings were held as bad in law. The application filed by the Respondent No.1 Company was allowed and the complaint was disposed of due to lack of jurisdiction under the MRTU and PULP Act. 4. The core issue involved in this petition is whether the impugned order of the Industrial Court is legal and proper. 5. Heard learned counsel for the parties. 6. At the threshold, it is pertinent to note that no evidence was adduced by the petitioners. The Respondents also were not called upon to adduce at least prima facie evidence in support of their contentions that the canteen was a separate establishment unconnected with the activities of the Respondent No.1 Company. The parties had not gone to trial. The 9 complaint (ULP) No.358/1997 came to be dismissed simply on basis of the pleadings in the application of the Respondent No.1 and because of the reason that the employer and employee relationship was denied. The Industrial Court did not go into merits of the matter in order to examine whether there were 250 or more employees working in the Respondent No.1 Company so as to attract provisions of Section 46 of the Factories Act, 1948. The litmus test is to examine whether the Company has real control over the activities of the canteen. The control over the activities of the canteen, employees of the canteen and the appropriate regulations for running business of the canteen ought to have taken into consideration. The contention of the petitioners was that by virtue of Government Notification, the contract system was abolished. The main thrust of the argument advanced on behalf of the Respondent No.1, before the Industrial Court as well as this Court, is that when the dispute is raised regarding existence of employee employee relationship then the complaint would not be maintainable and the Industrial Court has no 10 jurisdiction to proceed further. 7. The question is whether such complaint can be abortively disposed of only when such a dispute is raised through an application filed by the Company (Respondent No.1). The learned Member of the Industrial Court relied on "Vividh Kamgar Sabha Vs. Kalyani Steels Ltd. and another" 2001 1 CLR 532. The learned Member further placed reliance on certain observations in case of "Cipla Ltd. Vs. Maharashtra General Kamgar Union and others" 2001 AIR SCW 929. In Cipla's case it has been held : "If the case put forth by the workmen is that they have been directly employed by the appellant-company but the contract itself is a camouflage and, therefore, needs to be adjudicated in a matter which an be gone into by appropriate Industrial Tribunal or Labour Court, such question can not be examined by the Labour Court or the Industrial Court 11 constituted under the Act. The object of the enactment is, amongst other aspects, enforcing provisions relating to unfair labour practices. If that is so, unless it is undisputed or indisputable that there is employee- employee relationship between the parties, the question of unfair practice can not be inquired into at all." 8. Mr.Upadhye, learned advocate seeks to rely on certain observations in "Sarva Shramik Sangh Vs. M/s Indian Smelting and Refining Co.Ltd. and others" 2003 AIR SCW 5989. He further seeks to rely on "Indian Seamless Metal Tubes Limited Vs. Sunil Rambhau Iwale and others" 2002 (4) Mh.L.J.151. The Apex Court and this Court held in both these cases that jurisdiction of the Industrial Court would depend upon the existence of employer -employee relationship. A Single Bench of this Court in "Indian Seamless Metal Tubes Ltd. Vs. Sunil Rambhau Iwale and others (supra) held that if there is any dispute 12 about such relationship between the parties then the same may be first resolved by raising an issue before the appropriate forum in appropriate proceedings and not in the complaint itself before the Industrial Court under the Industrial Disputes Act and only after establishment the status as an employee in such appropriate forum, the complaint at the instance of the complainant can be filed under the said Act. 9. There is no difficulty in going along with the line of argument put forth by Mr.Upadhye, but for recent pronouncement of the Apex Court in "Hindalco Industries Ltd. Vs. Association of Engineering Workers" 2008 (2) Supreme Court 760. In "Hindalco Industries Ltd.", the Apex Court took survey of catena of case law related to the subject. It was also a case of canteen employees. The two points for consideration raised in "Hindalco Industries Ltd." were thus : "(i) Whether the Industrial Court is justified in issuing direction to 13 absorb all the employees of the canteen in the company's employment and pay them wages and other benefits to the extent of last category of unskilled workers in the company; (ii) Whether the High Court is right in affirming the said order.?" It is significant to note that the Apex Court referred to "M.M.R.Khan Vs. Union of India" 1990 Supp SCC 191 and "Reserve Bank of India Vs. Workmen (1996) 3 SCC 267. The Apex Court observed : "As rightly concluded by the Industrial Court, the company has clearly laid down the quality, quantity, the rates and manner of supplying food articles. After adverting to clause (d)(1)(2) of the agreement, the Industrial Court has concluded that though responsibility is cast upon the contractor to make payment of wages, P.F. contribution etc. on submission of the bills, the 14 amounts are to be paid/reimbursed by the company. The above details clearly show that though certain amounts are being paid by the contractor, in the real sense, ultimately, it is the company which pays all the amounts. From the evidence materials, it is also clear that the activities of the workmen in the canteen, their suitability to work, physical fitness are ultimately controlled by the company. In those circumstances, the Industrial Court is perfectly right in arriving at the conclusion that the evidence coupled with the terms of agreement show that the contract is nothing but paper agreement. As stated earlier, in spite of change of several contractors, neither the workmen were replaced nor fresh appointments were made." 10. On consideration of the judgment of "Hindalco Industries Ltd." (supra), I am of the 15 opinion that merely because there is denial of relationship on part of the Respondent No.1 - Company in the application (Exh.56) it was not proper to answer the jurisdictional issue. The Industrial Court should not have inferred that there is ouster of jurisdiction simply because such relationship is denied by the Respondent No. 1. The Industrial Court should have tried the jurisdictional issue alongwith the other issues inasmuch as it is a mixed question of facts and law. In this view of the matter, the impugned order is lopsided and unsustainable. I need not express opinion on merits and all questions relating to the nature of employment should be kept open for due trial before the Industrial Court. 11. In view of the foregoing reasons, the petition is allowed. The impugned order is quashed to the extent of the petitioners and the complaint (ULP) No.358/1997 is restored to its original position with direction that the jurisdictional issue may be tried alongwith other issues and the complaint be decided on merits. 16 All the questions are kept open and the same may be agitated by the parties before the Industrial Court. The other Writ Petitions (W.P.No. 1087/2003 and W.P.No.2805/2003) arising out of the same order are segregated and will be decided on the basis of factual matrix obtained in each of the case. Rule made absolute accordingly. No costs. C.A.No.9779/2008 and C.A.No.2880/2009 are disposed of. 12. The R & P be remitted to the Industrial Court for the purpose of further trial. (V.R.KINGAONKAR,J.) asp/office/wp288903