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

The appellant No. 1 is a company engaged in the business of producing and manufacturing soft drinks of various brands, such as Coca Cola, Thumps up, Limca etc. The appellant company has employed certain employees through the contractors. The respondent Nos. 2 and 3 in Appeal No. 782 of 2001 are the contractors. The employees and their union viz., Bhartiya Kamgar Sena filed complaints of unfair labour practices under Items 5, 6, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, hereinafter referred to as the M.R.T.U.P.U.L.P. Act. The employees and the union would be hereinafter referred to as "the respondents". It was the case of the respondents before the Industrial Court that the concerned employees were in the employment of the appellant company for a period ranging from 2 to 16 years as set out in the complaints without any interruption. It was specifically averred in the complaints that thecontractors, being individuals, were having no office but were operating from their residence. The respondents further averred that the employees were working under the supervision and control of the management of the appellant company. According to the respondents, the services of these employees were engaged by the appellant company and that the nature of work done by them was of permanent and perennial nature. It was the grievance of the said respondents that the persons employed were falsely labelled as contract labour engaged through the contractors. According to them, as they were doing the same work under the same roof and under the same management, they were entitled to be treated as the regular employees of the appellant company to get all the benefits available to the regular employees of the appellant company. It was emphasised that thecontracts were a sham paper arrangement and that there was no genuine and real contract labour engaged by the appellant company. In view of the aforesaid pleadings, the respondents sought reliefs from the Industrial Court as followsIt be decided and declared that the respondents have engaged in and are continuing to engage in Unfair Labour Practices under Items 5, 6, 9 and 10 of Schedule IV of M.R.T.U.P.U.L.P. Act, 1971 and they be refrained from engaging in such acts of unfair labour practices.(b) It be decided and declared that the respondent No. 3 is a sham contractor and the complainants are employees of the respondent No. 1 company.(c) It be decided and declared that the complainants are entitled to all benefits and privileges available under the settlements/agreements entered into between the respondent No. 1 and union of employees of respondent No. 1 and the respondents be directed accordingly."They also sought interim orders to protect the existing position of employment which was granted by the Industrial Court and confirmed by the learned Single Judge of this Court.2. The appellant company has filed its written statement to contest the complaints of unfair labour practices on the grounds, inter alia, that the concerned persons were not the direct and regular employees of the appellant company but they were engaged through the contractors and there was no master and servant relationship between the appellant company on the one hand and the contract labour on the other. The appellant company denied all other charges of unfair labour practices against it levelled in the complaints.3. While the complaints were pending before the Industrial Court, the Supreme Court delivered its judgment in the case of (Vividh Kamgar Sabha v. Kalyani Steels Ltd.another)1, 2001(2) Bom.C.R. (S.C.)324 : 2001(I) C.L.R. 532 as also in (Cipla Limited v. Maharashtra General Kamgar Union and others)2, 2001(2) Bom.C.R. (S.C.)822 : 2001(I) C.L.R. 754. Based on these two judgments, the appellant company filed applications in each of the aforesaid complaint alleging, inter alia that the Industrial Court had no jurisdiction under the M.R.T.U.P.U.L.P. Act to decide a question as to whether any particular contract was sham and bogus and whether the contract workers were in fact the direct workmen of the principal employer. It was contended that the complaints were not maintainable in law and were liable to be dismissed. Both the applications were rejected by the Industrial Court and the order passed by the Industrial Court was confirmed by the learned Single Judge.4. The learned Single Judge held that in the case of Cipla Ltd. and Kalyani Steels Ltd. (supra), the whole evidence and the entire material was placed before the Industrial Court on the basis of which it was found that there was no employer employee relationship between the contract labour and the principal employer and under these circumstances, the Supreme Court has held that if the employees fail to establishrelationship by adducing proper material, it cannot be said that the principal employer was guilty of any unfair labour practice alleged by the employees. The learned Single Judge observed :"10. At the outset I must express my inability to accept the contention of Shri Cama, the learned Counsel for the petitioners that the proceedings under M.R.T.U.P.U.L.P. Act are of summary nature. From the preamble to the last Item of the Schedules it would be crystal clear that the enactment contemplates a full fledged trial of the complaint filed by the parties before the appropriate courts under section 28 read with section 36 of the Act. The appropriate Court has to accept the pleadings and documents from both the parties and record evidence and have to hear both the sides and decide the complaints under section 26 of references under sections 24 and 25 of the Act in accordance with law. The courts under this Act are empowered to decide all the incidental issues arising during the course of the proceedings. The Act further provides a revision under section 44 of the Act from the orders of the Labour Court to the Industrial Court. Section 59 of the Act puts embargo on the parties to file any other proceedings relating to the same cause of action decided by the courts under this Act either under the Industrial Disputes Act or the Bombay Industrial Relations Act, as the case may be. The decision of the courts under this Act are regarded to be final. Violation of any provisions of the Act and disobedience of the orders attract penalties and attract penal consequences. I am, therefore, not able to agree with Shri Cama that the complaints filed under the Act are of summary nature and that the Industrial Court has no powers and jurisdiction to decide the employer employee relationship in the narrow jurisdiction being of summary nature."5. The learned Judge was of the view that the Industrial Court will have to go into all the aspects of the matter and will have to decide the issue of real relationship of the alleged contract labour, i.e. the employees with the principal employer. Similarly, the Industrial Court will have to address itself on the issue whether the supplier of the labour had become a contractor and what would be the deeming effect ofby the appellant company andvalid licence under the Contract Labour (Regulation and Abolition) Act on the relationship between the parties. The learned Judge concluded that the Industrial Court has merely postponed the decision on the issue of employer employee relationship and directed the Industrial Court to frame an issue in this respect and decide the same on merits on the basis of the evidence and material produced by the parties.

Reasoning: 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.