-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2894 OF 2002 Amar Bhaskar Vernekar & Ors. : Petitioners V/s. Empire Industries Ltd. & Ors. : Respondents ... Ms Gayatri Singh for the petitioners. Mr.K.M.Naik for respondent no.1. Mr.Kiran Bapat with Mr.T.R.Yadav for respondent no.5. Mr.M.S.Paranjape for respondent no.6. ... CORAM : S.A. BOBDE, J. DATE : SEPTEMBER 22 & 23, 2008. P.C. 1. This is a petition challenging the order of the Industrial Court dated 4.3.2002 in complaint under the MRTU & PULP Act, 1971. The Industrial Court has held that there is no unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act and in particular it was not necessary for the respondent no.2, Empire Dyeing, to seek protection under section 25-O of the Industrial Disputes Act because the number of employees were less than 100. 2. The issue that arises for consideration is whether the -: 2 :- finding of the Industrial Court that it has no jurisdiction to decide the matter since the status of the workmen alleged to be workmen of the respondent no.2, Empire Dyeing, was denied as such by the employer who had pleaded that they were workmen of the contractor i.e. Maruti Tare. It was contended on behalf of the workmen that 15 workmen whose names appear in exh.A-3 were, in fact, direct employees of the principal employer because the respondent no.6, Maruti Tare, was the contractor employed by the respondent no.2. The learned Industrial Court has observed vide paragraph 54 that exh.C-20 is a written contract given to him by the company i.e. Empire Industries. Thereafter, in paragraph 57 the Industrial Court has observed that the respondent no.2, Empire Dyeing, has denied that apart from the 15 contract workmen referred to above, there is an issue of 41 workmen who are denied by Empire Dyeing to be their workmen. These 41 employees, according to the respondent no.2, Empire Dyeing, are employees of M/s.Rendil. Having regard to the law laid down by the Supreme Court in Vividh Kamgar Sabha v. Kalyani Steels Ltd. (2001 AIR SCW 170) and in Cipla Ltd. v. Maharashtra General Kamgar Union & Ors. (2001 I CLR 754), the Industrial Court held that the complaint is not maintainable. In Cipla Ltd.’s case (supra), the Supreme Court observed as follows:- -: 3 :- "7. But one thing is clear - if the employees are working under a contract covered by the Contract Labour (Regulation and Abolition) Act then it is clear that the Labour Court or the industrial adjudicating authorities cannot have any jurisdiction to deal with the matter as it falls within the province of an appropriate Government to abolish the same. 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 is a matter which can be gone into by appropriate Industrial Tribunal or Labour Court. Such question cannot be examined by the Labour Court or the Industrial Court 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 employer-employee relationship between the parties, the question of unfair practice cannot be inquired into at all. The respondent union came to the Labour Court with a complainant that the workmen are engaged by the appellant through the contractor and though that is ostensible relationship the true relationship is one of master and servant between the appellant and the workmen in question. By this process, the workmen repudiate their relationship with the contractor under whom they are employed but claim relationship of an employee under the appellant. That exercise of repudiation of the contract with one and establishment of a legal relationship with another can be done only in a regular Industrial Tribunal/Court under the I.D. Act." 3. In Vividh Kamgar Sabha’s case (supra), the Supreme Court observed as follows:- -: 4 :- "4. At this stage it must be mentioned that this Court has also in the case of Central Labour Union (Red Flag) Bombay v. Ahmedabad Mfg. & Calico Printing Co. Ltd. & Ors. reported in 1995 II LLJ 765, held that where the workmen have not been accepted by the company to be its employees, then no complaint would lie under the MRTU & PULP Act. We are in full agreement with the abovementioned view. 5. The provisions of MRTU & PULP Act can only be enforced by persons who admittedly are workmen. If there is dispute as to whether the employees are employees of the company, then that dispute must first be got resolved by raising a dispute before the appropriate forum. It is only after the status as a workmen is established in an appropriate forum that a complaint could be made under the provisions of MRTU & PULP Act." 4. Ms Singh, the learned counsel for the petitioners, relied on the judgement of a Full Bench of this Court in Tukaram Tanaji Mandhare & Anr. v. Raymond Woollen Mills Ltd. & Ors. (2006 I CLR 126) for the proposition that where the industry is covered by the BIR Act, merely because the employer takes a plea that the workmen are employed by his contractor, the complaint under the ULP Act cannot be dismissed as not tenable. The Full Bench has arrived at this view on the basis of the definition of "employee" and "employer" in sections 3(13) and (14) of the B.I.F.R Act. In the present case, however, the ratio would have no application since the plea of the employer is not that the complaint is barred because the workmen are employed by a contractor. The plea is that -: 5 :- the workmen are not employed by them at all and are workmen of one Maruti Tare, who is the contractor of Empire Industries. 5. In this view of the matter, it is clear that the respondent no.2, Empire Dyeing, had denied the relationship of employer and employee with the workmen alleged by the petitioner Union to be their workmen. This issue could not have been decided by the Industrial Court who has rightly dismissed the application as not maintainable, in accordance with law. 6. In this view of the matter, there is no merit in the Writ Petition which is hereby dismissed. S.A. BOBDE, J.