:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 532 OF 2008 Maharashtra General Kamgar Union ..Petitioner Vs. 1. M/s. N.R.C. Limited and anr. ..Respondents Ms. Jane Cox for petitioner. Mr. P.M. Palshikar for respondent no.1. Respondent No.2 is a formal party. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : February 29, 2008. Date : February 29, 2008. Date : February 29, 2008. P.C.: P.C.: P.C.: 1. Heard Ms. Jane Cox the learned counsel for the petitioner. 2. Rule. Respondent No.1 waives service. Respondent No.2 is a formal party, who is claimed to be a Contractor for running the Canteen at the relevant time. Rule is taken up for final hearing forthwith. :2: 3. Reference (IDA) No. 127 of 2003 is pending before the Third Labour Court at Thane for the adjudication of the demand of reinstatement raised by the petitioner-Union on behalf of the 27 employees working in the Canteen and whose names are listed at Annexure "A" to the reference order. 4. The respondent no.1-company has not disputed that these workmen were working in the Canteen in its factory premises, but at the same time it contended that respondent no.2 was the the Canteen Contractor and he was the employer. Thus, the Labour Court has to adjudicate upon the first issue of employer-employee relationship. On or about 20/7/2007 the Union submitted an application at Exh.42 in the pending reference and prayed for directions to the respondent no.1 to produce the P.F. record of the concerned workers i.e. 27 workmen listed in Annexure "A" for the period from 1980 to 1/4/1997. The respondent-company by filing its say opposed the said application and by the impugned order dated 12/10/2007 the Labour Court was pleased to reject the application at Exh.42. :3: 5. It is not disputed that the said workmen were covered under the Provident Fund Scheme, the P.F. deductions were being effected from their monthly salary. To decide the issue of employer - employee relationship, it is necessary for the Labour Court to consider all such record that may be available regarding P.F. contribution, ESI contribution, returns submitted to the Factory Inspector and so on so forth. The Application at Exh.42 appears to have been made to bring on record such documents. It was also submitted by the learned counsel for the petitioner-Union that the P.F. is managed by the Trust and the contribution is not remitted to the office of the P.F. Commissioner. In support of these contentions, P.F. contribution statements of Mr.W.M. Magar for the period closed on 31/12/1981 and 31/12/1982 have been placed on record. The said statements do indicate that the P.F. is being managed by the National Rayon Corporation Provident Fund No.II, Mohone. 6. The learned Judge of the Labour Court noted :4: that the P.F. contribution was admitted by the Company and it was not necessary to decide the date from which the services were continued when the issue in adjudication is only for the reinstatement with backwages and continuity of service. Apparently, the Labour Court committed a grave error and it was necessary for the Labour Court to keep in mind that the main issue which was, in fact, the preliminary issue was regarding employer - employee relationship and the P.F. record would be a part of the evidence in support of the preliminary issue and favouring either of the parties and, therefore, the said record must come before the Labour Court. 7. Hence, the impugned order is unsustainable and the petition is allowed. The impugned order is quashed and set aside. Consequently, the Application at Exh.42 hereby stands allowed. Reference is expedited. 8. Rule is made absolute accordingly. :5: (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)