1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1240 of 2001 Hindustan Lever Limited, A Company registered under The Companies Act, 1956, having its Head office at Hindustan Lever House, 165/166, Backbay Reclamation, Mumbai 400 020 and Research Centre at B.D.Sawant Marg, Chakala, Andheri (E) Mumbai 400 099. ..Petitioner v/s. Hindustan Lever Research Centre Employees Union having its address at Hindustan Lever Research Centre at B.D.Sawant Marg, Chakala, Andheri (E) Mumbai – 400 099. 2. Security Guards Board of Greater Bombay & Thane having its office at Copper Roller Mills Pvt.Ltd. Compound, 2nd floor, B.S.Marg, Bhandup (West) Mumbai-400 078. ..Respondents WITH WRIT PETITION NO. 1537 OF 2001 Hindustan Lever Research Centre Employees Union 2 Being a Registered Trade Union having its office at C/o. Hindustan Lever Research Centre, Andheri (E) Mumbai 400099. ..Petitioner v/s. Hindustan Lever Limited Research Centre, Chakala, Andheri (East) Mumbai 400 099. 2. Dr. V.R.Dhanuka, Deputy Head Laboratory, M/s. Hindustan Lever Limited Research Centre, Chakala, Andheri (E) Mumbai 400099. 3. Ms. Nalini Nutan Personnel Manager M/s. Hindustan Lever Limited, Research Centre, Chakala, Andheri(E), Mumbai 400099, 4. Security Guards Board for Greater Bombay and Thane Districts, Copper Roller Mills Pvt. Ltd. Compound, 2nd floor, B.s.Marg, Bhandup (West) Mumbai (West), Mumbai 400078. ..Respondents P.K. Rele, Sr. Counsel a/w. Rajesh Rele & Vinod Tayde i/b. Piyush Shah for the petitioner in WP 1240/2001 and Resp. no.1 in WP 1537/2001. Shri Sanjay Singhvi a/w. Jane Cox for the petitioner in WP 1537/2001 & Resp. no.1 in WP 1240/2001. Lata Desai a/w. Pallavi Divekar for Respondent No. 2 in WP 1240/2001 & Resp. 4 in WP 1537/2001. CORAM:- A.M.KHANWILKAR, J DATED:- June 15, 2009. 3 JUDGMENT These Writ Petitions under Article 226 of the Constitution of India take exception to the Judgment and Order passed by the Industrial Court, Mumbai dated 9/4/2001 below Exhibit C-66 in Complaint(ULP) No. 88/2000 whereby the application preferred by the Management to dismiss the Complaint on the ground that the same is not maintainable came to be rejected in part. In this Judgment I shall refer to the parties as per their description in the complaint for the sake of convenience. In that, these are two cross petitions filed by the Complainant (Hindustan Lever Research Centre Employees Union) and the Respondent No.1 Company (Hindustan Lever Ltd.). This common Judgment and order will, therefore, dispose of both the Petitions together. 2. Briefly stated, complaint has been filed by the Complainant in its capacity as recognised Union to espouse the cause of 27 security guards engaged by the Respondent Company in its Research Centre at Chakala, Andheri (E), Mumbai. In substance, the grievance of the Complainant is that the Respondent Nos. 1, 2 to 4 have engaged in and are continuing to engage in the unfair labour practices under Items 4 & 5 of Schedule II and Items 3,5 & 9 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 on and from 16/1/2000. It is stated that 27 security guards named in the list accompanying the said complaint were engaged at the Research Centre of the Respondent No.1 through the Respondent No.4 Security Guards Board after July 1987. Complainant has stated that prior thereto, Respondent No.1 had engaged the security guards through Contractors, namely, Contract Laghu Udyog Kamgar Union. The said Union had filed Complaint, being Complaint(ULP) No. 1086/1985, claiming that the Contractor through whom the security guards 4 were engaged was a sham contractor and the security guards employed through such contractors be declared as permanent workmen of the Respondent No. 1-Company. It is stated that after institution of the said complaint, the concerned security guards were removed from services of Respondent No.1. Instead, the Respondent No. 1 Company engaged other set of security guards through another Security Agency (Contractor) from 2/7/1986 to 28/7/1987. It is further stated that Respondent No. 1 Company, for the first time started engaging security guards through the Security Guards Board (Respondent No.4), after July 1987-as the Respondent No. 1 Company was registered with the Board. It is further stated that some of the security guards employed earlier through M/s. Security & Personnel Services by the Respondent No. 1 Company were registered with the Security Guards Board and the Board allotted the same security guards to the Respondent No. 1 Company in the year 1987 and they were still working in the Respondent No. 1 Company. Names of three such security guards are mentioned in the complaint i.e., sarvashri R.S.Tiwari, P.N.Jha and B.N.Dubey. The Complainants have asserted that all the remaining security guards who are concerned with the present proceedings were also employed by one or the other security agencies carrying out security as well as watch and ward work on contract basis, prior to getting registered or getting allotted by the Security Guards Board. The Complainant further asserts that all the security guards or the security agencies and the principal employer including Respondent No. 1 were covered by the Contract Labour (Abolition & Regulation) Act prior to registered and/or getting allotted by the Security Guards Board. After giving this background the Complainant asserts that the service conditions such as wages, allowances, leave facilities etc. of the workmen employed at the Research Centre are covered by various settlements and Awards. The Complainant has relied on the Award dated 30/5/1997 passed by the Industrial Tribunal in Reference(IT) No. 11/1994 amongst other 5 Awards/Settlements. It is the case of the Complainant that 27 security guards employed through the Respondent No.4 were employed through Security Board to create artificial distinction and discrimination between two sets of workmen. In as much, as the Respondent No.1 had its another factory at Sewree which is known as Mumbai factory where in addition to 1300 workmen, the Company was employing around 30 security guards directly appointed by the Respondent No. 1 company. It is the case of the Complainant that the practice of recruiting the security guards who look after the security of Andheri unit of Respondent No. 1 company is nothing but a subterfuge, camouflage and pretence because all the 27 concerned security guards are performing the duties which are the essential and integral part of the activities carried out by Respondent No. 1 Company at its Research Centre. It is stated that the engagement of said 27 security guards was purportedly through the Board Respondent No.4, which is merely a paper arrangement created and prepared with an intention to exploit the said security guards and to make them work on lower wages without any security of employment. The Complainant has then adverted to the Award dated 30/5/1997 passed by the Industrial Tribunal which has considered the grievance about the disparity or discrimination between two sets of workmen of Sewree factory and Andheri factory. According to the Complainant, the Respondents 1 to 4 were under legal obligation to give parity of service conditions and wages to the concerned 27 workmen keeping in mind the observation of the Tribunal in the aforesaid Award dated 30/5/1997. It is stated that the security guards employed at Sewree factory (Mumbai factory) were getting wages in the range of Rs. 7000-9000 whereas the security guards employed at Andheri unit were getting wages only of Rs. 2,321/- including all allowances. According to the Complainant, the Respondents were not extending the benefits under the Award dated 30/5/1997 and were thus engaging in the unfair labour practices within the meaning of Item 9 of 6 Schedule IV. The Complainant further asserts that the above named three security guards approached the Personnel Manager of Respondent No.1 and requested to extend parity of service conditions and wages as was given to the security guards employed at Mumbai factory. However, no response has been received. According to Complainant, concerned 27 security guards were paid lower wages than the wages paid to 30 security guards employed at Mumbai factory of Respondent No. 1. It was unreasonable and arbitrary discrimination against the 27 security guards resulting in unfair labour practices under Items 5 & 9 of Schedule IV. The Complainant has further asserted that the concerned 27 security guards approached the complainant Union somewhere in the first week of January 2000. The Complainant union is a recognized union. The Personnel Manager threatened the concerned security guards in the first week of January that if they joined the union or continued to be its members, he may instruct the Security Guards Board (Respondent No.4) to withdraw them from Respondent No.1 premises and transfer them elsewhere. It is stated that on couple of occasions Officers of Respondent No.4 visited Respondent No. 1 premises and had a meeting with the Personnel Manager-Respondent No.3. Immediately thereafter, on 16th January, 2000 the Respondents transferred Sarvashree Shivaji P.Pawar, B.N.Dubey & R.S.Yadav from the Research Centre of Respondent No.1 company to another company i.e. M/s. Tata Press Ltd., Prabhadevi, Mumbai. The Complainant asserts that these transfers are carried out by Respondent No.4 on the complaint of and at the behest of Respondents 1, 2 & 3. No notices were given by the Respondents prior to the transfers of the said three security guards. This was done by the Respondents in collusion with each other with malafide intention of preventing the workmen and the Complainant union from approaching the Court against such malafide transfers. According to the Complainant, the transfer is otherwise illegal and not in conformity with the requirements of Clause 31 & 32 of the Scheme 7 under the Regulation of Employment and Welfare Act (hereinafter referred to as the Act for short). Resultantly, the act of transfer is indulging in unfair labour practice under item 9 of Schedule IV of the Act. Broadly, on these allegations the Complainant prayed for following reliefs:- “The Complaint, in the circumstances respectfully prays that this Hon’ble Court be pleased to grant the following reliefs in this complaint. “ (a) This Hon’ble Court may be pleased to hold that the Respondents No. 1 to 4 have engaged in unfair labour practices under Item4 and 5 of Schedule II and 3, 5 and 9 of Schedule IV of the MRTU & PULP Act. (b) The Hon’ble Court may be pleased to direct the Respondent Nos. 1 to 4 to cease and desist from engaging in the unfair labour practice complained of in the present complaint. (c) The Hon’ble Court may be pleased to direct the Respondent to pay wages allowances etc., to the concerned 27 Securities Guards on par with the permanent security guards at Sewree Factory of Respondent No. 1 from the date of award in Reference (IT) No. 11 of 1994, width 18% compound interest thereon. (d) That the Respondents may be directed to reinstate and continue and/or continue the complainant security guards services at Respondent No. 1 premises as per the provisions of the Maharashtra Private Security Guards Act, 1981 scheme and applicable labour laws. (e) Pending hearing and final disposal of the complaint, the Respondents may be directed to cancel the transfer order of Shri Dubey, Shri Pawar and Shri R.S.Yadav and allow them to continue the services at Respondent No.1 premises as per the provisions of Maharashtra Private Security Guards Act, 1981 and other applicable labour laws. (E-1) That to direct the Respondents to cancel the Transfer Orders issued to Sarvashree B.N.dube, R.S.Yadav and S.P.Pawar and allow them to continue to perform their duties at the premises of the Respondent No. 1 Company i.e. At Research Centre, as per the provisions of Maharashtra Private Security Guards Act, 1981 and other applicable Labour Laws. 8 (f) Pending hearing and final disposal of the complaint, the Respondent be prevented from transferring any security guards covered in the present complaint without following the due process of law. F1. That to direct the Respondent Nos. 1, 2 & 3 to pay wages as per Award in Reference (IT) No. 11 of 1994 to Sarvashree B.N.dube, R.S.Yadav and S.P.Pawar and to pay them the arrears arising therefrom, from the date of the Award, with 18% compound interest thereon. (g) That pending hearing and final disposal of the complaint, the Respondents be directed too pay 50% of the difference between the wages of permanent security guards of Mumbai Factory and the concerned 27 security guards in addition to their present wages. (h) Ad-interim and interim reliefs in terms of prayers E, F & G. (i) For the cost of the Complaint.” 3. The Respondents have resisted the said complaint. While the said complaint was pending, Respondent No. 1 company took out application before the Industrial Tribunal to dismiss the complaint as not maintainable. It would be appropriate to reproduce the said application which reads thus: “The Respondent No. 1 Company respectfully states and submits that the present complaint as filed is not maintainable on the following grounds which have been taken without prejudice to one another. (a) The Complainant union has no locus standi to file the present complaint inasmuch as it is the recognized union for the employees of the undertaking at Hindustan Lever Research Centre at Andheri. It has no authority in law to file any complaint in respect of any person who is not an employee of the Respondent No. 1 Company since a recognised union can represent or file a complaint only on behalf of the undertaking for which it has been recognized. This is clear from the averments of the Complainants in the application for interim-relief itself. (b) The concerned person at annexure 1 of the complaint are not 9 employees within the meaning of Section 3(5) of the MRTU & PULP Act, 1971. Neither is the Respondent No.1 an employer within the meaning Section 3(6) of the MRTU & PULP Act, 1971. The complaint itself as well as the annexures annexed thereto clearly shows that the 26 security guards whose names are at annexure 1 are security guards registered with the Security Guards Board which has been constituted under the provisions of the Maharashtra Private Security Guards (Regulation and Welfare Act, 1981) and the scheme framed thereunder. There is no employer-employee relationship between the Respondent No. 1 company and these registered security guards allotted to the Respondent No. 1 company by the Respondent NO. 4 Board. It is further submitted that the Respondent No.4 alone regulates the wages and service conditions of the Registered Security Guards. Page 34 to 39 clearly reveals the sole authority of the Respondent No. 4 over the said registered Security Guards. (c) The complaint does not conform to the requirements of Section 28 of the MRTU & PULP Act, 1971. (d) The complaint is also against the provisions of the Maharashtra Security Guards (Regulation and Welfare Act, 1981) The Respondent No. 1 Company therefor submits that in view of the above the complaint is not maintainable and this Hon’ble Court does not have the jurisdiction to entertain try and dispose of the same. Since the issue of the maintainability goes to the root of the matter this Hon’ble Court may be pleased to take the same as a preliminary issue and dispose of the same before embarking on the merits of the matter if any. The Respondents 1 to 3 reserves their right to file a detailed reply to the application for Interim Relief and the complaint thereafter if required, at the appropriate stage. Mumbai dated this 18th day of February, 2000.” 4. Significantly, the said application came to be rejected by a detailed Judgment and order passed by the Industrial Court on 24/2/2000. The Tribunal essentially relied on the decision of our High Court in the case of Krantikari Suraksha Rakshak Sanghatana v/s. A.L.Alaspurkar reported 10 in 1996 II CLR page 76 to hold that the relationship of master and servant exist between the security guards and the company to whom they have been allotted by the Board for the limited purpose of considering the grievance of unfair labour practices committed by the company. On this finding the application preferred by Respondent No. 1 Company came to be rejected after considering all aspects of the matter canvassed before the Tribunal. It is not in dispute that the Respondent No. 1 Company did not think it necessary to challenge the said decision. Indeed, the Complainant had filed application for grant of interim-relief during the pendency of the complaint which prayer was rejected by the Tribunal. The Complainant union being dissatisfied by the rejection of interim-relief preferred Writ Petition No. 563/2000. This Court while disposing of the said Writ Petition on 6/3/2000 directed the parties to maintain status-quo till the application for grant of interim-relief was finally disposed of. The Industrial Tribunal, however, finally rejected the application for interim-relief preferred by the Complainant by its order dated 4/4/2000. Against the said decision the Complainant union filed Writ Petition in this Court being Writ Petition No. 2214/2000 which was disposed of on 27/4/2000. This Court while disposing of the said Writ Petition expressed its prima-facie view that the issues raised by the union were arguable and require deeper consideration. 5. Be that as it may, Respondents 1, 2 & 3, however, once again filed another application calling upon the Industrial Court to decide the preliminary issue of maintainability of the complaint in the first instance and to defer the recording of further evidence in the complaint. This application was filed during the midst of recording of evidence. It was filed on 14/2/2001 mainly relying on the opinion of the Apex Court in the case of Vividh Kamgar Sabha v/s. Kalyani Steels Ltd. reported in 2001 I CLR page 532. Application reads thus: 11 “ The Respondents No. 1, 2 and 3 herein by this application raise the following preliminary issues in view of the judgement of the Hon’ble Supreme Court in the case of Vividh Kamgar Sabha v/s. Kalyani Steels Ltd. reported in 2001 I CLR 532, where in view of the said judgement since admittedly the workmen are the employees of the Security Guard Board as the complainant in para 3(3) states- “With a view to create artificial distinction and discrimination between the two sets of workmen, the Respondents have on paper shown the concerned 27 security guards as employed through the Respondent No. 4 i.e. Security Guards Board of Greater Bombay and Thane.... Further the engagement of these security guards through the Board i.e the Respondent No. 4, herein is a mere paper arrangement created and prepared with an intention to make them to work on lower wage without any security of employment.” This Hon’ble Court ought to dismiss the said complaint in the light of the above judgement as admittedly in view of the pleading in the complaint that the security guards are employees of the Respondent No. 4 and are on the rolls of the Security Guard Board and since the Respondent No. 1-3 in their application dated 18.2.2000, written statement dated 14.3.2000, additional written statement dated 29-6-2000 and reply to production of document dated 24-7-2000 have categorically averred that the persons at Annexre 1 of the complaint are not employees of the Respondent No. 1 Company and consequently are not employees within the meaning of Section 3(5) of the MRTU & PULP Act, 1971. It is respectfully submitted that keeping with the observations of the judgement of the Hon’ble Supreme Court this issue ought to be first resolved before proceeding with the complaint as in view of the judgement of the Hon’ble Supreme Court if there is a dispute whether the employees are employees of the Company, then that dispute ought to be resolved first and for that purpose the Complainant ought to raise dispute before the appropriate forum and come under the provisions of the MRTU & PULP Act by filing a complaint as the Complainant has done. In the light of what is stated above, it is respectfully prayed that this Hon’ble Court may be pleased to decide the preliminary issue of maintainability of this complaint in the first instance and also pleased not to record further evidence in the matter and the complaint may 12 please be dismissed. Mumbai Dated this 14th day of February 2001.” 6. It is this application which has been disposed of by the Industrial Court by the Judgment and order which is impugned by both the Complainant as well as Respondent No.1 Company. The Industrial Court in the first place proceeded to hold that the decision in Kalyani Steels (supra) or for that matter subsequent decision in Cipla reported in 2001 (1) CLR 734 would make no difference to the view already expressed by it on the earlier occasion in its decision dated 24/2/2008, while rejecting the application raising issue of maintainability of the complaint. Having said this, the Tribunal ought to have rejected the application (Exhibit C-66) preferred by Respondent No. 1 Company. However, on its own, it then proceeded to examine whether it would be possible for the Industrial Court in the Summary Enquiry which it is expected to undertake while deciding the complaint brought before it to examine voluminous documents to consider the grievance of the Complainant that the act of Respondents resulted in violation of equal pay for equal work or results in unfair labour practice under Item 9 of Schedule IV. The Industrial Court has recorded that it had spent sometime on recording of examination-in-chief and noticed that the Respondent company has filed 5 trunks and 3 boxes load of documents to establish the question of equal work. Besides, the oral evidence recorded has also run into almost 25 pages consuming three days of the Court. It is for that reason the Industrial Tribunal proceeded to hold that it may not be possible for it to enquire into the issue of equal pay for equal work which the Complainants want the Court to decide in the Summary Proceedings. Consistent with the above reasons, the Industrial Court proceeded to pass the following order: 13 “O R D E R I) The Application at Exh.C-66 stands partly allowed. ii) Part of the complaint moved under item 5 and 9 of Sch. IV on the ground of `Equal pay for equal work’ is not maintainable under summary provision provided under section 28 of the MRTU & PULP Act. iii) The rest of the Complaint stands maintainable for trial. Parties to the litigation to proceed further with the trial of the Complaint accordingly. (iv) No order as to costs” 7. It is this Judgment and order which is subject matter of challenge before this Court by the Complainant as well as Respondent No. 1 company. According to Respondent Company, no complaint would lie in relation to the grievance regarding service conditions of the security guards who have been employed by the Company through the Security Board. To buttress this submission, reliance is placed on the decision of the Supreme Court in Krantikari Suraksha Rakshak Sanghtana v/s. Bharat Sanchar Nigam Ltd. & ors. reported in (2008) 10 SCC 166, International Airport Authority Employees Union v/s. International Airport Authority of India & ors. reported in 2002 III LLJ 277 (Bombay Division Bench), Cipla Ltd. v/s. Maharashtra General Kamgar Union & ors. Reported in 2001 I CLR 754, Sarva Shramik Sangh v/s. Indian Smelting & Refining Company Ltd. & ors. reported in 2003 III CLR 949. Relying on these decisions it was argued by the Counsel for the Company that reliance placed on the view expressed therein-by the Bombay High Court, by the Tribunal as well as by the Complainant during the course of hearing before this Court, will have to be held as no more a good law. According to the Respondent Company, unless there is direct relationship of employer and employee, 14 question of maintaining complaint under the provisions of MRTU & PULP Act does not arise at all. It was argued that the security guards allotted by the Board can never acquire the status of direct employee of the Company. In that, there is no direct relationship of employer and employee qua them. Learned Counsel, however, submits that none of the Bombay High