Case: Reliance Energy Limited Vs. Rashtrawadi Kamgar Sangh &amp; Others

3. The appellants are original petitioners. They are a public limited company engaged in the business of supply of electricity in the suburbs and surrounding areas of Mumbai and Thane District. They shall be referred to as the appellant company for convenience. The appellant company is covered by the provisions of the Bombay Industrial Relations Act, 1946 (for short, "the BIR Act"). Respondent 1 is a union registered under the Trade Unions Act, 1946. It represents 41 workmen with whom we are concerned here. For convenience, we shall refer to them as "the said employees". Respondent 1 shall be referred to as "theRespondent 2 is the contractor and shall be so referred to.The case of thesaid employees are working with the appellant company for the last about 25 years. During 25 years, three contractors were interposed by the appellant company. The contractor is the last of the three. Though the contractors have come and gone, the said employees have continued to work with the appellant company. The said employees are working in the housekeeping department. The work of housekeeping is regular, permanent and of perennial nature. The introduction of the contractors is a ruse or camouflage. The said employees are covered by the definition of the term employee given under section 3(13) of the BIR Act and, therefore, they are the employees of the appellant company alone. On 15/2/2007, the appellant company in collusion with the contractor issued cheques for certain amounts in full and final settlement of their dues. The said employees have not encashed the said cheques. Since the appellant company has decided to shift its activities toComplex, they want to get rid of the said employees. Housekeeping is the integral part of the appellant companys regular activities. Aggrieved by the unfair labour practices of the appellant company and apprehending termination of the services of the said employees, the complainant union filed the instant complaint praying inter alia for a declaration that the appellant company has engaged in unfair labour practices, for a direction restraining it from engaging in unfair labour practices and for a direction to the appellant company to reinstate the said employees with full back wages and continuity of service if their services are terminated. An application for interim relief was filed praying that the appellant company may be directed to maintain status quo in respect of the employment of the said employees. The complaint and the application for interim relief were filed on 23/2/2007.6. On 23/2/2007 the Labour Court passed the following order:"Heard the learned Advocate for the complainant union and the learned Advocate for the respondent No.2 too. The status quo as on today stands granted till filing of reply as it is informed across the bar that the enlisted workmen have been as on today in the employment of the respondent No.2.Issue Show Cause Notice to the Respondents returnable on 22/3/2007."There is no dispute before us about the fact that when this order was passed learned counsel for the appellant company was present.7. On 19/7/2007, the complainant union filed application for additional interim reliefs on the ground that on 2/4/2007 the appellant company had refused entry, work and wages to the said employees. The complainant union alleged that the services of the said employees have been terminated without following due process of law in breach of status quo order dated 23/2/2007. The complainant union contended that the said employees are the employees of the appellant company only though their wages are routed through the contractor. The complainant union inter alia prayed that the appellant company and/or the contractor may be directed to pay full wages to the said employees every month pending final hearing of the complaint.8.The case of theappellant company as evident from the affidavits in reply in short is as follows:The contract between the appellant company and the contractor has come to an end by efflux of time after 31/3/2007 and hence the appellant company has ceased to be the principal employer for the said employees on and from 1/4/2007. The determination of the said contract is neither under challenge nor can be challenged in the instant complaint and as such the appellant company cannot be held to be the principal employer. The said employees are paid wages by the contractor and the supervision and control of the work is done by the personnel of the contractor. The appellant company denied that the work of housekeeping is integral part of the regular work of the appellant company. Allegations of unfair labour practices were denied.9. The contractor resisted the interim application.The case of thecontractor as evident from the affidavit of Shri Sahadev Betkar its proprietor is as under:The said employees are employed by the contractor and they have been deployed by the contractor at the premises of the appellant company. The wages and other service conditions of the said employees are determined and administered by the contractor. The contract between the appellant company and the contractor has come to an end by 31/3/2007 by efflux of time and till date the contractor has not terminated the services of the said employees. Prior to the contract coming to an end the contractor had told the said employees to report for work at the other sites where it is having similar contracts. However, the said employees told the contractor to settle their accounts finally as they did not wish to work further. They asked forpayments which was also offered by the contractor. However, after accepting the cheques the said employees have approached the court challenging the alleged termination. Contractors readiness and willingness to give work to the said employees at other sites where the contractor is having similar housekeeping contracts is expressed in the affidavit.10. The Labour Court by its judgment and order dated 31/3/2008 decided both the applications. The Labour Court held that considering the definition of the term employer given in Section 3(14)(e) of the BIR Act, the owner of the undertaking is the appellant company and, therefore, it is the principal employer. The Labour Court concluded that the appellant union has committed unfair labour practices against the said employees i.e. work was not provided to them though they were ready to work; that they were removed from the place of work with the help of police and that they were not paid wages. The Labour Court held that balance of convenience is in favour of the employees and they will suffer irreparable loss, if interim relief is not granted in their favour. The Labour Court directed the appellant company and the contractor to jointly or severally pay full wages to the said employees every month till the disposal of the complaint. It directed the appellant company and the contractor to pay jointly or severally full wages of the said employees from 2/4/2007 during the pendency of the complaint. It directed the appellant company and the contractor to jointly or severally reinstate all the said employees. It further directed that, if the work is not provided the appellant company and the contractor shall jointly or severally pay wages to the said employees during the pendency of the case till the final disposal of the complaint.11. The appellant company as well as the complainant union challenged the said order by filing revision applications. The appellant company filed an application praying for the stay of the Labour Courts order. The said application was rejected. The appellant company, therefore, challenged the Labour Courts order by filing Writ Petition No.3116 of 2008. By judgment and order dated 9/7/2008 learned Single Judge of this court disposed of the said writ petition. Learned Single Judge noted that counsel for the parties are agreed that they will not seek adjournment before the Revisional Court with a view to disposing of the complaint within the stipulated time. Learned Single Judge directed the Industrial Court to dispose of the pending revision applications latest by July, 2008. A statement was made on behalf of the complainant union that it shall not proceed with the criminal complaint filed before the Labour Court till the revisions are decided. Learned Single Judge noted that the order was passed in view of the consensus arrived at between the parties. Accordingly Industrial Court decided the revision applications by its order dated 28/7/2008. Industrial Court concurred with the Labour Court. Industrial Court concluded that the work done by the said employees was ordinarily part of the work of theIndustrial Court observed that real intention of the appellant company was to interpose contractors, so as to prevent the said employees from raising the plea of permanency.On a consideration of relevant judgments and relevant provisions of the BIR Act, particularly Section 3(13) and 3(14) thereof, the Industrial Court concluded that the said employees are workmen and the appellant company is the employer within the meaning of the BIR Act. While dealing with the submission that existence of a valid contract between the contractor and the principal employer is anon for invoking Sections 3(13) and 3(14) of the BIR Act and since the contract had come to an end by efflux of time, there was no statutory relationship of employer employee between the appellant company and the said employees and hence the complaint was not tenable, the Industrial Court observed that on the date of filing of the complaint the contract was in existence and hence protection of the MRTUPULP Act was available to the said employees. They had, therefore, rightly invoked the jurisdiction of the Labour Court. The Industrial Court felt that no interference was necessary with the impugned order. Both the revision applications came to be dismissed.12. Being aggrieved by the said judgment and order the appellant company preferred Writ Petition (L) No.1938 of 2008. Learned Single Judge dismissed the said petition. Hence this appeal.

Reasoning:
Undoubtedly if two views on the same material are reasonably possible, then the learned Single Judge was perfectly justified in adopting one of the two views. He was entitled to refuse discretionary relief or pass appropriate order on considerations like maintenance of industrial peace. Learned Single Judge was not bound to strike down even a wrong order only because it will be lawful to do so. Keeping in mind these principles laid down by the Supreme Court to which our attention is drawn by learned counsel, we have approached this case. We are concerned here with MRTUPULP Act and the BIR Act with particular reference to the definitions of the terms "employer" and "employee" delineated in the BIR Act.24. In Maharashtra Sugar Mills Limiteds case (supra), the industrial dispute between the Maharashtra Sugar Mills and its employees including the seasonal and contract labour was referred under section 13 of the BIR Act to the Industrial Tribunal. The Company contended that the Industrial Tribunal had no jurisdiction to arbitrate with reference to the contract labour employed in the industry. The Industrial Tribunal held that there was relationship of employer and employee between the company and the contract labour and hence it had jurisdiction to arbitrate the reference pertaining to contract labour. The Company challenged the Industrial Tribunals award. Learned Single Judge upheld the companys contention and quashed the award.In Ciplas case (supra), the Supreme Court held that if the employees are working under a contract covered by the Contract Labour (RegulationsAbolition) Act, then the Labour Court or the industrial adjudicating authorities cannot have any jurisdiction to deal with the matter as it falls within the province of an appropriate court to abolish the same. If the case put forth by the workmen is that they have been directly employed by the Company but the contract itself is a camouflage and therefore needs to be adjudicated is a matter which can be gone into by appropriate Industrial Tribunal or Labour Court. Such question cannot be examined by the Labour Court or the Industrial Court constituted under the MRTUPULP Act. The Supreme Court further held that, that can be done in a regular Industrial Tribunal/Court under the Industrial Disputes Act.Act.29. The above settled law can be applied to the present case. So long as the contract between the appellant company and the contractor was subsisting in view of section 3(13) of the BIR Act, the said employees were statutory employees of the appellant company even though there was no direct relationship of employer employee existing between them and the appellant company and a complaint filed by the said employees under the MRTU and PULP Act was perfectly maintainable. Undoubtedly, as held by the Full Bench in Tukaram Mandhares case (supra), if the complaint fails to disclose the jurisdictional fact that "the work being ordinarily part of the undertaking" in relation to the work which was entrusted to the workman of the contractor, the workman must first get the employer employee relationship established by adopting appropriate proceedings before the appropriate forum under the BIR Act. But we find that in this case, the said employees have clearly disclosed this jurisdictional fact in the complaint.It is true that the appellant company has denied this fact. But the appellant company cannot be heard to say that this jurisdictional fact is not disclosed in the complaint as required by the Full Bench in Tukaram Mandhares case (supra). Industrial Court has on consideration of the judgments of the Supreme Court in Commissioner of Customs, Mumbai v. M/s. J.D. Orgochem Ltd., 2008 AIR SCW 3893   and Pabbojan Tea Co. Ltd. v. Deputy Commissioner LakhinpurOrs. etc. 1968 (I6) FLR 1 held that it was not necessary for the complainant union even to plead that housekeeping is ordinarily part of the work of the undertaking of the appellant company because facts speak for themselves. The Industrial Court has observed that housekeeping is ordinarily part of the work of the undertaking of the appellant company. It is urged by Mr. Cama that this finding could not have been given by the Industrial Court in these proceedings. In our opinion, once the jurisdictional facts are stated in the complaint, unless the dispute raised by the appellant company that work of housekeeping is ordinarily not part of its work, appears to have substance, there is no question of getting it decided independently under the provisions of the BIR Act before approaching the Labour Court under the MRTUPULP Act. In the facts of this case, we cannot fault the Labour Court for having proceeded with the matter. This submission of Mr. Cama must, therefore, fail.31. It is true that whether the contract is a camouflage or not cannot be decided by the Labour Court or the Industrial Court in a complaint filed under the MRTUPULP Act. It has to be decided by the appropriate forum under the Industrial Disputes Act. Learned Single Judge has explained that the Industrial Court has used the word camouflage more in the sense of an excuse. In any case, these observations of the Industrial Court can be kept and should be kept out of consideration and obliterated. We are really concerned here with the question whether the order of status quo passed by the Labour Court on 23/2/2007 binds the appellant company as well as the contractor. When this order was passed admittedly counsel for all the parties were present. The Labour Court has noted the statement made by learned counsel for the contractor that the said employees were in the employment of the contractor as on 23/2/2007. Since on that day the contract between the appellant company and the contractor was subsisting in the light of the judgment of this court in Maharashtra Sugar Mills Limiteds case (supra) and in Tukaram Mandhares case (supra), the said employees were the employees of the appellant company.TheIndustrial Court recorded, and in our prima facie opinion rightly so, that the connivance between the appellant company and the contractor is writ large on the face of record. The Industrial Court observed that the offer to provide work to the said employees made by the contractor is unprecedented. The Industrial Court referred to the Supreme Courts judgments which lay down that final relief should not be granted at interim stage and distinguished the present case from the said judgments on the ground that it is an exceptional case and granted reliefs in the nature of final reliefs.33. In the impugned judgment, learned Single Judge also commented on the conduct of the appellant company. He observed that there was an order of status quo and the said employees were removed from the premises albeit on the ground that the contract between the appellant company and contractor had come to an end. Learned Single Judge observed that circumstances justify the grant of what appears to be final relief because the Labour Court had initially granted relief which was rendered ineffective by the act of parties. We endorse this view of learned Singlethe said employees have refused the offer, the contractor cannot be saddled with payment of wages. Mr. Shaikh learned counsel for thesubmitted that the appellant company is covered by the BIR Act. There is protection of the service conditions of the said employees which will be lost if they go to companies which are not covered by the BIR Act. He submitted that if the said employees take employment in other industries, if they succeed in the complaint they would not be able to get back to the appellant company even if their lien is preserved because the new employees will resist such aour opinion, balance of convenience tilts in their favour. They have been removed from the appellant companys premises with police help on the spacious ground that the status quo order does not bind the appellant company. The appellant company failed to observe restraint and tried to frustrate the status quo order. It is this conduct of the appellant company and the legal principles enunciated by the Supreme Court and by this court in the aforementioned judgments and not misplaced sympathy, generosity and private benevolence which persuade us to confirm the impugned order passed by Learned Single Judge confirming the orders passed by the Labour Court and the Industrial Court.