1 3-wp-3772-3804-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3772 OF 2011 Shri Arvind S. Parkar .. Petitioner V/s. Lily Mathew Contractor & Another .. Respondents. WITH WRIT PETITION NO.3804 OF 2011 Shri Arvind S. Awere .. Petitioner. V/s. Lily Mathew Contractor & Another .. Respondents. Mr. P.S. Devdas, for the Petitioner in both the matters. Mrs. Meena Doshi, for Respondent No.2 in both the matters. CORAM : K.K.TATED, J. DATE : 26th JULY, 2011. P.C.: 1 Heard the learned counsel for the Parties. 2 Rule. Rule made returnable forthwith. 2 3-wp-3772-3804-2011.sxw 3 By consent, both the mattes are taken on board for final hearing at the stage of admission. 4 Both the Petitions can be disposed of by passing a common order, as the issue involved in both the matters are similar. 5 By this Petition, under Articles 226 and 227 of the Constitution of India, the Petitioner­ Original Second Party challenges the order dated 9th July, 2010 passed by the Labour Court, Ratnagiri in Reference (IDA) No. 15 of 2003 and Reference (IDA) No. 17 of 2003 rejecting Petitioner’s Reference on the ground that Petitioner failed to establish the relationship of employer and employee with Respondent No.2, the Original Party No.2­ the company. 6 In these matters, it is the case of the Petitioner that the Respondent­Company restrained them from joining their duties from 28th June, 2002 and, therefore, they issued the demand notice. Pursuant to the said demand notice, the conciliation officer referred the matter to the Labour Court, Ratnagiri. It is the case of the Petitioner that the Labour Court failed to consider the statement of claim filed by them and the evidence on record at the time of deciding the present reference. He submits that the Labour Court without considering the statement of claim and evidence, only relied on the demand notice and held hat there was no 3 3-wp-3772-3804-2011.sxw relationship of employer and employee between Petitioner and Respondent No.2­Company. He submits that though the Petitioner was employed with the Respondent No.2­Company through contractor­Respondent No.1, actually, he was employee of Respondent No.2­Company. He submits that the contract between Respondent Nos.1 & 2 is sham and bogus and, therefore, it cannot be relied on at the time of deciding the present reference. He further submits that the Labour Court erred in relying on provisions of Section 10(4) of Industrial Disputes Act, 1947. On the basis of this submission, the learned counsel appearing for the Petitioner submits that the impugned award passed by the Labour Court dated 9th July, 2010 is liable to be set aside and the Reference to be allowed, directing Respondent No.2 to reinstate the Petitioners in service and to pay back wages. 7 On the other hand, the learned counsel appearing for Respondent No.2 vehemently opposed the present Petitions. Respondent No.2 filed affidavit in reply dated 27th June, 2011. The learned counsel appearing for Respondent No.2 submits that the Petitioner in their demand notice specifically stated that they were employed with the Respondent No. 2­Company through the contractor i.e. Respondent No.1. Not only that, in their evidence also, the Petitioner admitted this fact. As the Petitioner failed to challenge the contract between Respondent Nos.1 & 2 in their demand notice, Petitioner cannot raise that point in the present matters. 4 3-wp-3772-3804-2011.sxw She further submits that the reference made by the conciliation officer is only in respect of the reinstatement of the Petitioner with back wages and continuity of service with effect from 28th June, 2002. She further submits that the Labour Court cannot go beyond the Reference made by the conciliation officer. In support of these contentions, she relied on the judgment in the matter of The Delhi Cloth and General Mills Co. Ltd. v/s. The Workmen & Others reported in AIR 1967­ SCC­469. On the basis of this, the learned counsel appearing for Respondent No.2 states that there is no substance in the present Petitions and the same is liable to be dismissed with costs. 8 With the assistance of learned counsel appearing for the parties, I have gone through the copy of contract and the copy of statement of claim, written statement filed by Respondent Nos.1 & 2, the evidence of Petitioner and other documents. One thing is clear that the Petitioner in his demand notice specifically admitted that he was employed through the contractor i.e. Respondent No.1. He also admitted in his evidence that the Respondent No.1 employed him with Respondent No.2. Neither the demand notice, nor in statement of claim, Petitioners raised any objection about the contract between Respondent Nos.1 & 2. Therefore, the Labour Court rightly held that in view of Section 10(4), the Court cannot go beyond the Reference made by conciliation officer. Similar view is taken by 5 3-wp-3772-3804-2011.sxw Apex Court in the matter of The Delhi Cloth and General Mills Co. Ltd. (supra). In this case, the Apex Court held that in view of Section 10(4), the incidental issue means something happening as a result of or in connection with the dispute or associated with the dispute. Paragraph 9 of the said judgment reads thus:­ “ Para – 9:­ From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary: "happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated:" "Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct. In the light of the above, it would appear that the third issue was framed on the basis that there was a strike and there was a lock­out and it was for the Industrial Tribunal to examine the facts and circumstances leading to the strike and the lockout and to come to a decision as to whether one or the other or both were justified. On the issue as framed it would not be open to the workmen to question the existence of the strike, or, to the Management to deny the declaration of a lock­out. The parties were to be allowed to lead evidence to show that the strike was not justified or that the lock­out was improper. The third issue has also a sub­issue, namely, if the lock­out was not legal, whether the workmen were entitled to wages for the period of 6 3-wp-3772-3804-2011.sxw the lock­out. Similarly, the fourth issue proceeds on the basis that there was a sit­down­strike in the Swatantra Bharat Mills on 23rd February, 1966 and the question referred was as to the propriety or legality of the same. It was not for any of the Unions to contend on the issues as framed that there was no sit­ down strike. On their success on the plea of justification of the sit­down strike depended their claim to wages for the period of the strike.” 9 In the present case in hand, the Labour Court categorically held that the Petitioners themselves have admitted in their demand notice and justification statement that they were appointed by the Contractor and, therefore, there is no relationship of employer and employee between the Petitioner and Respondent No.2. Therefore, I do not find any reason to interfere in the impugned order dated 9th July, 2010 passed by the Labour Court, Ratnagiri in Reference (IDA) No. 15 of 2003 and Reference (IDA) No. 17 of 2003 under Articles 226 and 227 of the Constitution of India, which is based on evidence on record. 10 Both Writ Petitions are dismissed. 11 No order as to costs. (K.K.TATED, J.)