Case: Hindustan Coca Cola Bottling S/W Private Limited &amp; Another Vs. Bhartiya Kamgar Sena &amp; Others

circumstances, no complaint could lie under the Act as is held by the two courts below. We, therefore, find nothing wrong in the decision impugned before us. The workmen have first to establish that they are the workmen of the respondent company before they can file any complaint under the Act, admittedly, this has not been done. It is open for the workmen to raise an appropriate industrial dispute in that behalf if they are entitled to do so before they resort to the provisions of the present Act. 3. The appeals, therefore, stand dismissed with no order as to costs." 16. Mr. Cama also drew our attention to an unreported decision of the learned Single Judge of this Court (Khandeparkar, J.) in (Indian Seamless Metal Tubes Limited v. Sunil Iwale and others)8, Writ Petition No. 1433 of 2000 decided on 5th July, 2001. In that case the learned Judge has not agreed with the view taken by Kochar, J. in the present case and held that in view of the decisions of the Supreme Court in Cipla Ltd. and Kalyani Steels Ltd. that only precondition to seek remedy under the M.R.T.U. & P.U.L.P. Act is necessity of existence of employer-employee relationship between the parties and when its existence is not already established or is disputable, the party has to first seek relief under the Central Act, i.e. the Industrial Disputes Act or the Bombay Act, i.e. the Bombay Industrial Relations Act, and if successful therein to seek remedy under the said Act thereafter. We are in agreement with the observations of the learned Single Judge but with a rider that in cases where the employer-employee relationship was recognised at some stage and thereafter it was disputed, the Industrial Court has jurisdiction to decide this issue as an incidental issue under section 32 of the M.R.T.U. & P.U.L.P. Act. 17. In his judgment Khandeparkar, J., has referred to a judgment of another Single Judge Rebello, J. in Writ Petition No. 1365 of 2001 (Raigad Mazdoor Sangh v. Vikram Bapat)9. Rebello, J., has, inter alia, held that while deciding the question of maintainability of the complaint under M.R.T.U. & P.U.L.P. Act, the Industrial Court is bound to frame an issue as a preliminary issue on that count and after framing the preliminary issue decide the point of jurisdiction. Khandeparkar, J. has, however, disagreed with this view and held that the question of framing such issue does not arise if on a perusal of the complaint under the M.R.T.U. & P.U.L.P. Act it is found that there is no jurisdiction to try the complaint. He observed: "20. It was also sought to be contended that mere denial of status of the complainant as that of employee by the opponent, cannot non-suit the employees and such denial would not oust the jurisdiction to the Industrial Court to ascertain the fact situation by framing issues and asking the parties to lead evidence in that regard, and to decide the same, possibly by summary manner. In fact, similar was the contention sought to be raised in Vividha Kamgar Sabhas case by saying that such denials can be raised in each and every case to defeat the claim of the employee. The contention was rejected by the Apex Court. Indeed, a question of framing of issue or holding of summary inquiry does not arise at all. Once, it is clear that the Industrial Court under the said Act has no jurisdiction to decide the issue relating to employer employee relationship, the occasion for framing of issue on the point which is beyond its jurisdiction cannot arise. Once it is clear that the jurisdiction of the Industrial Court depends upon the fact of existence of employer-employees relationship between the parties which is a jurisdictional fact, which should exist to enable the Industrial Court to assume jurisdiction to entertain the complaint under the said Act, in the absence of the same, any attempt on the part of the Industrial Court to adjudicate upon the issue of such relationship would amount to mistake of fact in relation to jurisdiction." We are in respectful agreement with the above view expressed by Khandeparkar, J. If, on a bare reading of the complaint, the Industrial Court or the Labour Court as the case may be, is satisfied that it has no jurisdiction to decide the complaint as there is no undisputed or indisputable employer/employee relationship, the occasion for framing an issue on that count would not arise. If the Industrial Court or the Labour Court is satisfied that there is no undisputed or indisputable the employer/employee relationship, it cannot assume jurisdiction to entertain the complaint and the complaint will have to be dismissed as not maintainable. 18. In the light of the foregoing discussion, we have no hesitation in holding that in the instant case the complaints filed by the union and the employees are not maintainable and the Industrial Court has no jurisdiction to try these complaints. 19. The next question is what would be the fate of about 400 workers who are involved in the present proceedings. They have been working in the appellants establishment for a period of 2 years to 16 years. Taking into consideration the fact that the employees have been working with the company for long durations and there was interim protection granted to the employees which was also confirmed by this Court and also having regard to the fact that there is no possibility of amicable settlement of the dispute in conciliation, we think that the ends of justice would be better served by directing the State Government to treat the complaints as industrial disputes under section 10 of the Industrial Disputes Act and to make reference to the appropriate Industrial Tribunal accordingly. A similar order passed by the Division Bench in Writ Petition No. 1023 of 2000 (The Federation of Hindustan Lever Ltd. v. The Secretary State Contract Labour Advisory Board)10. and the S.L.P. filed against that order was dismissed by the Supreme Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. In Cipla Ltd., the respondent Union had filed a complaint against the appellant therein under section 28 of the Act alleging that the appellant company has been engaging persons but on paper they are shown as contract workmen working for contractor, that the contractor is only a namelender whereas the appellant is the real employer of the workmen. It was alleged that the appellant company denied the relationship of employer and employee but that such denial of relationship was only to deprive the workmen of permanency in the company and payment of wages as are applicable to the permanent workmen of the company. The company, apart from denying that it is guilty of unfair labour practices, contended that, the employees in question were not the employees of the company, nor were they employed ostensibly through the contractor. The Labour Court came to the conclusion that the contractor was a separate entity and the contract was genuine and therefore dismissed the complaint. This decision of the Labour Court was confirmed by the Industrial Court.In Cipla Ltd., the Supreme Court has categorically held that if the case put forth by the workmen is that they have been employed by the contractor but the contract itself is a camouflage and in fact they are direct employees of the employer, this issue can only be gone into by the appropriate Industrial Tribunal or Labour Court constituted under the Industrial Disputes Act.It would be apparent from the above observations of the Supreme Court that if the employer employee relationship is established by the competent forum, viz. Industrial Tribunal or Labour Court under the Industrial Disputes Act or therelationship is undisputed or indisputable then the complaint under the M.R.T.U.P.U.L.P. Act would be maintainable. We hasten to add that as pointed out by the Supreme Court in Cipla Ltd. if at any time therelationship is recognised by the employer and subsequently it is disputed such a question would be incidental question arising under section 32 of the Act and the Labour Court or the Industrial Court as the case may be would be competent to decide such question. However, in a case where the employer had never recognised the workmen as his employees and throughout treated these persons as employees of the contractors, the Court constituted under section 28 of the M.R.T.U.P.U.L.P. Act will have no jurisdiction to entertain the complaint unless the status of relationship ofis first determined in a proceedings under the Industrial Disputes Act. 14. In Kalyani Steels Ltd. (supra), another two Judges Bench of the Supreme Court has taken an identical view. In fact, the said decision was rendered earlier in point of time and was affirmed in the Cipla Ltd. In Kalyani Steels Ltd., theclaimed that even though the concerned workmen are actually the workmen of the employer, the employer is not treating them at par with other employees but have nationally engaged contractors to run the canteen. This complaint came to be dismissed by the Industrial Court. The appellant union then filed S.L.P. directly to the Supreme Court on the ground that in the case of (Krantikari Suraksha Rakshak Sangathana v. S.V. Naik)7, reported in 1993(I) C.L.R. page 1002 has already held that the Industrial Court cannot in a complaint under M.R.T.U.P.U.L.P. Act to abolish contract labour and treat employees as direct employees of the company.It would also be useful to refer to the decision of the Supreme Court in Ahmedabad Mfg.Calico Printing Co. Ltd. which has been referred to in both Cipla Ltd and Kalyani Steels Ltd. In that case, the complaint of the union was that 21 workmen who were working in one of the canteen of thewere not given the service conditions as were available to the other workmen of the company and there was also a threat of termination of their services. It was an admitted position in that case that the workmen were employed by a contractor who was given a contract to run the canteen in question. The complaint, however, was filed on the footing that the workmen were the employees of the company and, therefore, the breaches committed and the threats of retrenchment were cognizable by the Industrial Court under the M.R.T.U.P.U.L.P. Act. Even in the complaint, there was no case made out that the workmen in question had ever been accepted by the company as its employees. However, the complaint proceeded on the basis as if the workmen were a part of theof the company. The Industrial Court dismissed the complaint holding that since the workmen were not the workmen of the respondent company, the complaint was not maintainable under the M.R.T.U.P.U.L.P. Act. The High Court in writ petition confirmed the said finding and dismissed the petition also on the same ground.Mr. Cama also drew our attention to an unreported decision of the learned Single Judge of this Court (Khandeparkar, J.) in (Indian Seamless Metal Tubes Limited v. Sunil Iwale and others)8, Writ Petition No. 1433 of 2000 decided on 5th July, 2001. In that case the learned Judge has not agreed with the view taken by Kochar, J. in the present case and held that in view of the decisions of the Supreme Court in Cipla Ltd. and Kalyani Steels Ltd. that only precondition to seek remedy under the M.R.T.U.P.U.L.P. Act is necessity of existence ofrelationship between the parties and when its existence is not already established or is disputable, the party has to first seek relief under the Central Act, i.e. the Industrial Disputes Act or the Bombay Act, i.e. the Bombay Industrial Relations Act, and if successful therein to seek remedy under the said Act thereafter. We are in agreement with the observations of the learned Single Judge but with a rider that in cases where therelationship was recognised at some stage and thereafter it was disputed, the Industrial Court has jurisdiction to decide this issue as an incidental issue under section 32 of the M.R.T.U.7. In his judgment Khandeparkar, J., has referred to a judgment of another Single Judge Rebello, J. in Writ Petition No. 1365 of 2001 (Raigad Mazdoor Sangh v. Vikram Bapat)9. Rebello, J., has, inter alia, held that while deciding the question of maintainability of the complaint under M.R.T.U.P.U.L.P. Act, the Industrial Court is bound to frame an issue as a preliminary issue on that count and after framing the preliminary issue decide the point ofare in respectful agreement with the above view expressed by Khandeparkar, J. If, on a bare reading of the complaint, the Industrial Court or the Labour Court as the case may be, is satisfied that it has no jurisdiction to decide the complaint as there is no undisputed or indisputable employer/employee relationship, the occasion for framing an issue on that count would not arise. If the Industrial Court or the Labour Court is satisfied that there is no undisputed or indisputable the employer/employee relationship, it cannot assume jurisdiction to entertain the complaint and the complaint will have to be dismissed as not maintainable.into consideration the fact that the employees have been working with the company for long durations and there was interim protection granted to the employees which was also confirmed by this Court and also having regard to the fact that there is no possibility of amicable settlement of the dispute in conciliation, we think that the ends of justice would be better served by directing the State Government to treat the complaints as industrial disputes under section 10 of the Industrial Disputes Act and to make reference to the appropriate Industrial Tribunal accordingly.