Case: Fulchand Baburao Gedam Vs. Lokmat

( 1 ) THESE letters patent appeals arising out of common judgment and raising common question of law, are being disposed of by this2 ) THE appeals proceed on certain admitted premises, which are narrated asThe appellants claim to be employed by respondent. (b) Appellants filed separate complaints before the Industrial court, Maharashtra Bench at Nagpur, under Sections 5, 28, 30 r/w section 26 and 27 of Maharashtra Recognition of Trade Union, and prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act), with similar prayers in all complaints which are asdeclare that the Respondent has engaged in and is still engaging in the unfair labour practices complained of; ii) direct the Respondent to cease and desist from engaging in the unfair labour practices complained of; iii) direct the respondent to withdraw temporarily during the pendency of these proceedings and also finally the impugned unfair labour practices forthwith and to grant to the complainant the status and all other privileges and benefits that are applicable to regular and permanent Peons with retrospective effect and in any case from the date on which the complainant completed 240 days of continuous service; iv) direct the Respondent to give to the complainant the benefits as are made applicable through palekar and Bachhawat Award. " (c) According to complainants, the employer had engaged in unfair trade practice under item 9, Scheduled 4 of MRTU and PULP Act. (d) In their respective complaints, the complainants pleaded that each one of them had joined the employment of the respondent company as a peon on different dates by oral orders, and that they were performing duties in the Office of respondent regularly, and had completed continuous service of 240 days and had gained the status of permanent employees under the provisions of Standing Orders and were entitled to all benefits available to permanent employees working in the respondent3 ) THE employer opposed the complaints on followingthe complainants were neither appointed nor employed by the respondents. (b) There was no employer and employee relationship. (c) Some officers might have employed the complainants in their personal capacity, and for attending to their requirements, the complainants may be visiting the place of establishment of the4 ) IN the light of aforesaid pleadings, the complainants were heard. The workmen tendered their evidence, and the employer opposed the complaints by recording oral evidence of some of its Officers to oppose the complaint and in rebuttal of the evidence of the5 ) THE Industrial Court rendered a common judgment datedthereby allowing the complaints, and declaring the employers action to be by way of unfair labour7 ) LEARNED Single Judge recorded the finding as to the maintainability of complaints under MRTP and PULP Act asIn the facts and circumstances of the present case, the contention of Mr. Thakur that the ratio of the three cages of the Supreme Court i. e. (1) General Labour Union (Red Flag), BombayMit. and Calico Printing Co. Ltd. , and others, (2) Vividh Kamgar Sabha V. Maharashtra general Kamgar Union and Ors. (cited supra), is distinguishable and cannot be applied to the case at hand, does not find favour with this Court. Merely because the facts differ as in the three cases, where the employees had approached the Court under the MRTU and PULP Act with a case that actually they are the employees of the company which has engaged them through a Contractor, so as to deprive them of benefits to which they are entitled as employees of the company, whereas in the present case, they have approached the Court on the basis that they have been employed on daily wages by theand are continued as such without regularizing their services and giving them all the benefits to which regular employees of the establishment are entitled. 21. Mr. Manohar has placed reliance on the case of Indian Seamless Metal Tubes Ltd. (cited supra) which is a decision of this High Court in which this question has been examined thoroughly and came to be approved by the Division Bench of this court in Hindustan Coca Cola Bottling S/w. P. Ltd. and anr. V. Narayan Rawal and Ors (2001 III CLR 1025), wherein view taken by another learned Judge of this court in the very case of Hindustan Coca Cola bottling S/w. P. Ltd. and Anr V. Narayan Rawal and Ors (2001 II CLR 380) have been repelled and it has been held that the complaints filed by the Union and the employees are not maintainable asrelationship is disputed and Industrial Court has therefore, no jurisdiction to try the complaints. If the Industrial Court or the Labour Court is satisfied that there is no undisputed or indisputable employer/employee relationship, then it cannot assume jurisdiction to entertain the complaint and the complaint will have to be dismissed as not maintainable. In both the cases i.e. Indian Seamless and also Hindustan Coca Cola Bottlings (cited supra), the Court has relied upon all the three decisions of the Supreme Court commencing from General Labour union (Red Flag), Vividh Kamgar Sabha, and Cipla ltd. , and, therefore, the Division Bench of this court in Hindustan Coca Cola Bottlings case, quashed and set aside the order passed by the learned Single judge and dismissed the complaint as not maintainable and referred the matter to the State Government to treat the complaint as Industrial Dispute and refer the same to Industrial Tribunal within eight weeks with time bound programme to dispose of the reference. 22. This Court having taken the view that the contentious issue does arise between the parties as regards to very existence ofrelationship, the Industrial Court ought not to have proceeded further with the complaint and decided the same on merits. Probably this situation occurred as the High Court declined to intervene in the matter at an appropriate stage. 23. As this Court has already come to the conclusion that the decision of the Industrial Court is a nullity and proposes to quash and set aside the impugned orders, the parties would have to undergo a fresh exercise before the Labour Court in the matter and it would be better if this Court does not make any observation and leave it to the parties to lead evidence keeping in mind the principles of Law of evidence that the parties are expected to lead best evidence available with them to establish their respective cases. 24. In the result, this Court quashes and sets aside the impugned orders and dismisses all the complaints by issuing similar directions as in the case of Hindustan Coca Cola Bottlings S/w Pvt. Ltd. ,Bhartiya Kamgar Sona and Ors (2001 III CLR 1025) and direct the State Government to treat the complaints as industrial Disputes and refer them to the Industrial tribunals within eight weeks from today. The industrial Tribunal shall decide the references within six months from the date of the receipt of the same. On the dispute being referred for adjudicating, it would be open for the parties to lead fresh evidence in the matter. This Court further makes it clear that the labour Court while adjudicating the dispute, would not be influenced by any observations made by the industrial Court while disposing of the complaints filed by the respondents and would decide the matter on its own merits and in accordance with law. "( 8 ) APPELLANTS taking exception to the order passed by learned single Judge, filed above Letters Patent Appeals.

Reasoning:
( 17 ) IT is also seen that even it was not the employers case that the complainants were contractors employees genuinely employed as such, and therefore, the complaints were not maintainable. The entire case of employer was of plain and simplicitor denial, as it claimed that the workman concerned may have been employed/engaged by its Officers in their individual18 ) THE learned Advocates for the parties have not cited any decision on the point as to in what manner the situation shall be dealt with if the case before the Court is of such a nature where the workmen are not employed through contractor, but the employer has barely denied the employer " employee20 ) PERUSAL of judgment impugned as well as the judgments of learned Single Judge of this Court in (1) 2006 (2) Bom. LC 596 (Bom)Mahindra and Mahindra Ltd. , Vs. General Employees Union, and (2) 2007 (4) Mh. L. J. , Janprabha Offset works Vs. Sarva Shramik sangh, Jalgaon, discloses that in these cases in which the employees concerned were employed with Canteen contractor, or a Contractor, and that it was alleged that the Contract was sham and bogus and, therefore, the workmen and were claiming to be employees of company by lifting veil as in case of the workmen in the case of Cipla Ltd. , supra. In case of Cipla Ltd. Complainants had claimed that the contract Labour be declared to be a sham and bogus device, and demanded a declaration that they be declared as direct employees. This type of prayer in complaint under Section 28 MRTU and PULP Act, was held impermissible. In the complaints filed by the workmen in the present cases such prayer is not made directly or21 ) AS stated above, issue of contract labour is not involved, directly or indirectly. We, therefore, hold that the ratio laid down in the aforesaid cases is not applicable to present22 ) IN the backdrop of the above discussion, we are of the considered view that applying ratio laid down in three Judgments of the Supreme Court referred to in para 19 would amount to including the appellants amongst the class of workmen to which they do not23 ) IN view of the above discussion, we hold that the complaints filed by the appellants before the Labour Court were maintainable.