Case: Hindalco Industries Ltd Vs. Association of Engineering Workers

2) The respondent herein namely, Association of Engineering Workers Union (hereinafter referred to as "the Union") filed a complaint of unfair labour practice under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the MRTU and PULP Act, 1971") against Hindalco Industries Ltd. - appellant herein (hereinafter referred to as "the Company") before the Industrial Court at Thane. According to the Union, the complainant is a trade union recognized as a representative union of the appellant-company. The Company has engaged employees in unfair labour practices on and from 1971 on a continuous basis from month to month, therefore, the period of limitation is not applicable. However, as a measure of abundant precaution, the Union has filed a separate application for condonation of delay. The Company has engaged about 500 workmen in the manufacture of aluminium and aluminium products. The complainant-Union (respondent herein) is a recognized Union for the establishment of the appellant-Company. In terms of Section 46 ofthe Factories Act, 1948, the Company is duty bound to maintain a canteen for the benefits of workmen working in an establishment. Accordingly, the Company is maintaining a Canteen at its Kalwa establishment. In order to avoid giving the workmen working in the canteen, permanency and benefits which are applicable to permanent workmen of the Company, the Company is illegally treating the workmen working the canteen as contract workmen. It is the specific case of the complainant-Union that the contract is sham and is a mere arrangement made for the purpose of avoiding permanency and giving wages and benefits as are applicable to permanent workmen of the company.3) On the date of filing of the complaint, out of 27 workmen who have worked for various periods, 23 workmen have worked for more than ten years continuously the maximum being for 25 years. The remaining four workmen have also worked for more than 3 = years and as such are permanent workmen of the Company. The Company has been making arrangement showing on papers that the contract is being given to someone or the other whereas in fact, the canteen is engaged and run by the Company itself. It is, therefore, the case of the Union that 27 workmen whose names are mentioned in the complaint are, in fact, the workmen of the Company. As per the various decisions of this Court, the workmen who are working in the statutory canteen are treated as workmen of the principal employer. On the same analogy, all the 27 workmen are workers of the Company.4) The Company has engaged and is engaging in unfair labour practices by treating its own workmen as workmen on contract. The workmen are entitled for a declaration that they are the workmen of the Company. In order to comply with the technicalities that are required to be done, the Union is simultaneously making an application to the State Contract Labour Advisory Board to abolish the contract system as far as the canteen is concerned in the appellant-Company. The Union is also raising a demand that all the 27 workmen should be absorbed in the Company from the initial date of their employment in the Company and pay them wages and other benefits that are applicable to permanent workmen of the Company.5) The Company filed the reply in the Industrial Court stating that the complaint is time barred since filed beyond the prescribed time limit laid down under the provisions of the MRTU & PULP Act, 1971, hence the same is to be dismissed in limine. Further the dispute under reference is pertaining to employees employed under the contract i.e., contract labour, there is a specific remedy and relief available under the Contract Labour (Regulation & Abolition) Act, 1971, which is a specific forum available to redress the grievances, if any. Inasmuch as the Complainant-Union has already approached the appropriate authority for abolition of contract labour, the present complaint before the Industrial Court is liable to be dismissed on the principle of res judicata. With regard to the merits, it is stated that the practice of giving contract to run the canteen is in vogue right from inception. The complainant is very well aware of the contract and the canteen contractor who is managing the canteen. There are several decisions of this Court holding that employing contract labour cannot be agitated within the forum under MRTU & PULP Act 1971, when there is specific remedy available in Contract Labour (Regulation & Abolition) Act, 1971. Moreover, since it is a disputable point such dispute is required to be resolved through the machinery provided underthe Industrial Disputes Act, 1947, hence, any complaint to that effect under MRTU & PULP Act, 1971 is not maintainable. It is further reiterated that working of the canteen is distinct and separate which is neither incidental nor connected with the manufacturing process of the factory. The canteen is exclusively run and managed by the contractor which is an outside agency.6) On the above pleadings and on the basis of the oral and documentary evidence, the Industrial Court, by order dated 15.10.1998, allowed the complaint and declared that the Company has committed unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act, 1971 and further directed the Company to cease and desist such unfair labour practice. In the same order, the Industrial Court directed the Company to absorb and make the canteen employees referred to in the Annexure as permanent employees of the Company from the date of its order. In addition to the same, the Industrial Court directed the Company to pay them the wages and other benefits like the last category of unskilled workmen in the Company.7) Aggrieved by the aforesaid order of the Industrial Court, the Company preferred Writ Petition No. 6181 of 1998 before the High Court of Bombay. The learned single Judge, by order dated 25.01.1999, confirmed the order of the Industrial Court and dismissed the writ petition. The said order of the learned single Judge was challenged before the Division Bench of the High Court in L.P.A. No. 58 of 1999. By order dated 22.03.1999, the said L.P.A. was summarily dismissed. Questioning the same, the Company filed an appeal before this Court in Civil Appeal No.6120 of 1999 (@ S.L.P.(C) No. 9244 of 1999). By order dated 25.10.1999, this Court allowed the appeal of the Company, set aside the order passed by the High Court and remitted the matter to the High Court for deciding the same on merits. Pursuant to the said direction, L.P.A. No. 58 of 1999 was restored on its file and heard afresh and the Division Bench by the impugned order dismissed the Letters Patent Appeal and confirmed the order of the Industrial Court. Aggrieved by the aforesaid order of the Division Bench of the High Court dated 20.01.2000, the Company has filed the presentThe respondent herein namely, Association of Engineering Workers Union (hereinafter referred to as "the Union") filed a complaint of unfair labour practice under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the MRTU and PULP Act, 1971") against Hindalco Industries Ltd.appellant herein (hereinafter referred to as "the Company") before the Industrial Court at Thane. According to the Union, the complainant is a trade union recognized as a representative union of theThe Company has engaged employees in unfair labour practices on and from 1971 on a continuous basis from month to month, therefore, the period of limitation is not applicable. However, as a measure of abundant precaution, the Union has filed a separate application for condonation of delay. The Company has engaged about 500 workmen in the manufacture of aluminium and aluminium products. The(respondent herein) is a recognized Union for the establishment of theIn terms of Section 46 ofthe Factories Act, 1948, the Company is duty bound to maintain a canteen for the benefits of workmen working in an establishment. Accordingly, the Company is maintaining a Canteen at its Kalwa establishment. In order to avoid giving the workmen working in the canteen, permanency and benefits which are applicable to permanent workmen of the Company, the Company is illegally treating the workmen working the canteen as contract workmen. It is the specific case of thethat the contract is sham and is a mere arrangement made for the purpose of avoiding permanency and giving wages and benefits as are applicable to permanent workmen of the company.3) On the date of filing of the complaint, out of 27 workmen who have worked for various periods, 23 workmen have worked for more than ten years continuously the maximum being for 25 years. The remaining four workmen have also worked for more than 3 = years and as such are permanent workmen of the Company. The Company has been making arrangement showing on papers that the contract is being given to someone or the other whereas in fact, the canteen is engaged and run by the Company itself. It is, therefore, the case of the Union that 27 workmen whose names are mentioned in the complaint are, in fact, the workmen of the Company. As per the various decisions of this Court, the workmen who are working in the statutory canteen are treated as workmen of the principal employer. On the same analogy, all the 27 workmen are workers of the Company.4) The Company has engaged and is engaging in unfair labour practices by treating its own workmen as workmen on contract. The workmen are entitled for a declaration that they are the workmen of the Company. In order to comply with the technicalities that are required to be done, the Union is simultaneously making an application to the State Contract Labour Advisory Board to abolish the contract system as far as the canteen is concerned in theThe Union is also raising a demand that all the 27 workmen should be absorbed in the Company from the initial date of their employment in the Company and pay them wages and other benefits that are applicable to permanent workmen of the Company.5) The Company filed the reply in the Industrial Court stating that the complaint is time barred since filed beyond the prescribed time limit laid down under the provisions of the MRTU & PULP Act, 1971, hence the same is to be dismissed in limine. Further the dispute under reference is pertaining to employees employed under the contract i.e., contract labour, there is a specific remedy and relief available under the Contract Labour (Regulation & Abolition) Act, 1971, which is a specific forum available to redress the grievances, if any. Inasmuch as thehas already approached the appropriate authority for abolition of contract labour, the present complaint before the Industrial Court is liable to be dismissed on the principle of resOn the above pleadings and on the basis of the oral and documentary evidence, the Industrial Court, by order dated 15.10.1998, allowed the complaint and declared that the Company has committed unfair labour practice under Item 9 of Schedule IV of the MRTU & PULP Act, 1971 and further directed the Company to cease and desist such unfair labour practice. In the same order, the Industrial Court directed the Company to absorb and make the canteen employees referred to in the Annexure as permanent employees of the Company from the date of its order. In addition to the same, the Industrial Court directed the Company to pay them the wages and other benefits like the last category of unskilled workmen in the Company.7) Aggrieved by the aforesaid order of the Industrial Court, the Company preferred Writ Petition No. 6181 of 1998 before the High Court of Bombay. The learned single Judge, by order dated 25.01.1999, confirmed the order of the Industrial Court and dismissed the writ petition. The said order of the learned single Judge was challenged before the Division Bench of the High Court in L.P.A. No. 58 of 1999. By order dated 22.03.1999, the said L.P.A. was summarily dismissed. Questioning the same, the Company filed an appeal before this Court in Civil Appeal No.6120 of 1999 (@ S.L.P.(C) No. 9244 of 1999). By order dated 25.10.1999, this Court allowed the appeal of the Company, set aside the order passed by the High Court and remitted the matter to the High Court for deciding the same on merits. Pursuant to the said direction, L.P.A. No. 58 of 1999 was restored on its file and heard afresh and the Division Bench by the impugned order dismissed the Letters Patent Appeal and confirmed the order of the Industrial Court. Aggrieved by the aforesaid order of the Division Bench of the High Court dated 20.01.2000, the Company has filed the present

Reasoning: 11) Though an objection was raised as to limitation in filing complaint before the Industrial Court in view of reasons adduced and accepted by the Industrial Court and the High Court, we are of the view that there is no need to elaborate the same. We also reject the supplementary objection, namely, the complaint is hit by the principle of res judicata since according to the Industrial Court, no sufficient material was placed to throw the complaint on the ground of earlier/parallel proceeding in any otheris not in dispute that the provisions of Factories Act, 1948 are applicable to the Company. Section 46(1) mandates that the State Government may make rules requiring that in any specified factory wherein more than 250 workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers. The presence of a canteen within the Company premises and statutory provision as referred above are not disputed. However, it is the case of the Company that the employees in the canteen are working through a contractor and, therefore, they are not entitled for status of permanent employees of the Company.Considering these factors cumulatively, in addition to the fact that the canteen in the establishment of the Management is a statutory canteen, we are of the opinion that in the instant case, the respondent workmen are in fact the workmen of the appellantargument would have had some substance if in reality the Management had engaged a contractor who was wholly independent of the Management, but we have come to the conclusion on facts that the contractor in the present case is engaged only for the purpose of record and for all purposes the workmen in this case are in fact the workmen of the Management. In the background of this finding, the last argument of Mr. Andhyarujina should alsoIt is true that Sridhar Bhandari, the Manager of Gambhir Caterer, in his evidence has stated that the workers are keeping the attendance card, muster roll (Ex.C-12 and C-13) and payment details of Gambhir Caterer. In view of the above statement, the Industrial Court ventured to find legitimate control over the activities of the canteen employees. While considering the said issue, the Court verified various terms of agreement dated 28.11.1995. The relevant terms have been reproduced in para 49 of the order of the Industrial Court which clearly show that it is the duty of the company to provide canteen premises free of rent along with free water, electricity, fuel, furniture, fixtures, crockery and all cooking utensils. It further shows that the company has fixed the rate of meals, eatables, snacks, tea and beverages etc. As rightly pointed out by the Industrial Court, apart from the evidence let in on the side of the union and the company from the terms of contract, it is clear that it is the duty of the company to provide sufficient premises, furniture, fuel, gas, electricity, water and also laid down several procedure as to how food items to be supplied. As rightly concluded by the Industrial Court, the company has clearly laid down the quality, quantity, the rates and manner of supplying food articles. After adverting to clause (d) (1)(2) of the agreement, the Industrial Court has concluded that though responsibility is cast upon the contractor to make payment of wages, P.F. contribution etc. on submission of the bills, the amounts are to be paid/reimbursed by the company. The above details clearly show that though certain amounts are being paid by the contractor, in the real sense, ultimately, it is the company which pays all the amounts. From the evidence and the materials, it is also clear that the activities of the workmen in the canteen, their suitability to work, physical fitness are ultimately controlled by the company. In those circumstances, the Industrial Court is perfectly right in arriving the conclusion that the evidence coupled with the terms of agreement show that the contract is nothing but paper agreement. As stated earlier, in spite of change of several contractors, neither the workmen were replaced nor fresh appointments were made. On the other hand, same workmen were continuing even on the date of filing of the complaint. Taking note of all the above-mentioned relevant materials, special circumstances and most of the employees are working for more than 10-15 years and finding that there is no valid reason for the company to deny their permanency, the Industrial Court rightly concluded that the company has committed unfair labour practice under Item 9 of Schedule IV of the MRTU and PULP Act, 1971 and issued appropriate directions. With the materials placed, we are also of the opinion that even though the record shows that canteen is being run by the contractor, ultimate control and supervision over the canteen is of the Company. Inasmuch as the facts on hand are identical to the decision in Indian Petrochemicals Corpn. Ltd. case (supra) which is a three-Judge Bench decision which was not cited before any of the decisions relied on by the company, in view of the circumstances narrated in the earlier paras, we accept the conclusion arrived by the Industrial Tribunal.27) Coming to the impugned order of the High Court, it is argued that in spite of the earlier direction of this Court in SLP (C) No. 9244 of 1999, the High Court has not adverted to the relevant aspects and committed the same error in confirming the order of the Industrial Court. In the light of the said contention, we have gone through the impugned decision of the High Court, which clearly shows that the High Court was conscious about the observation of this Court. The High Court order further shows that it has adverted to the relevant details furnished before the Industrial Court and analysed the same and finally after recording that the finding of fact arrived by the Industrial Court cannot be termed as perverse and they are based on proper appreciation of evidence and sound reasoning dismissed the Letters Patent Appeal. We do not see any error or infirmity in arriving such conclusion. On the other hand, as discussed above, we are in entire agreement with the conclusion arrived by the Industrial Court and affirmed by the High Court.28) In the light of what has been stated above and in view of abundant factual details as mentioned in para 24 of this judgment as well as theas laid down in Indian Petrochemicals Corpn. Ltd. case (supra), we reject the stand taken by theThough an objection was raised as to limitation in filing complaint before the Industrial Court in view of reasons adduced and accepted by the Industrial Court and the High Court, we are of the view that there is no need to elaborate the same. We also reject the supplementary objection, namely, the complaint is hit by the principle of res judicata since according to the Industrial Court, no sufficient material was placed to throw the complaint on the ground of earlier/parallel proceeding in any otherIt is true that Sridhar Bhandari, the Manager of Gambhir Caterer, in his evidence has stated that the workers are keeping the attendance card, muster roll3) and payment details of Gambhir Caterer. In view of the above statement, the Industrial Court ventured to find legitimate control over the activities of the canteen employees. While considering the said issue, the Court verified various terms of agreement dated 28.11.1995. The relevant terms have been reproduced in para 49 of the order of the Industrial Court which clearly show that it is the duty of the company to provide canteen premises free of rent along with free water, electricity, fuel, furniture, fixtures, crockery and all cooking utensils. It further shows that the company has fixed the rate of meals, eatables, snacks, tea and beverages etc. As rightly pointed out by the Industrial Court, apart from the evidence let in on the side of the union and the company from the terms of contract, it is clear that it is the duty of the company to provide sufficient premises, furniture, fuel, gas, electricity, water and also laid down several procedure as to how food items to be supplied. As rightly concluded by the Industrial Court, the company has clearly laid down the quality, quantity, the rates and manner of supplying food articles. After adverting to clause (d) (1)(2) of the agreement, the Industrial Court has concluded that though responsibility is cast upon the contractor to make payment of wages, P.F. contribution etc. on submission of the bills, the amounts are to be paid/reimbursed by the company. The above details clearly show that though certain amounts are being paid by the contractor, in the real sense, ultimately, it is the company which pays all the amounts. From the evidence and the materials, it is also clear that the activities of the workmen in the canteen, their suitability to work, physical fitness are ultimately controlled by the company. In those circumstances, the Industrial Court is perfectly right in arriving the conclusion that the evidence coupled with the terms of agreement show that the contract is nothing but paper agreement. As stated earlier, in spite of change of several contractors, neither the workmen were replaced nor fresh appointments were made. On the other hand, same workmen were continuing even on the date of filing of the complaint. Taking note of all therelevant materials, special circumstances and most of the employees are working for more thanyears and finding that there is no valid reason for the company to deny their permanency, the Industrial Court rightly concluded that the company has committed unfair labour practice under Item 9 of Schedule IV of the MRTU and PULP Act, 1971 and issued appropriate directions. With the materials placed, we are also of the opinion that even though the record shows that canteen is being run by the contractor, ultimate control and supervision over the canteen is of the Company. Inasmuch as the facts on hand are identical to the decision in Indian Petrochemicals Corpn. Ltd. case (supra) which is aBench decision which was not cited before any of the decisions relied on by the company, in view of the circumstances narrated in the earlier paras, we accept the conclusion arrived by the Industrial Tribunal.27) Coming to the impugned order of the High Court, it is argued that in spite of the earlier direction of this Court in SLP (C) No. 9244 of 1999, the High Court has not adverted to the relevant aspects and committed the same error in confirming the order of the Industrial Court. In the light of the said contention, we have gone through the impugned decision of the High Court, which clearly shows that the High Court was conscious about the observation of this Court. The High Court order further shows that it has adverted to the relevant details furnished before the Industrial Court and analysed the same and finally after recording that the finding of fact arrived by the Industrial Court cannot be termed as perverse and they are based on proper appreciation of evidence and sound reasoning dismissed the Letters Patent Appeal. We do not see any error or infirmity in arriving such conclusion. On the other hand, as discussed above, we are in entire agreement with the conclusion arrived by the Industrial Court and affirmed by the High Court.