Bombay High Court
Ramesh S/O Champatrao Yeole And Another vs Chief Conservator Of Forest (T), ... on 29 October, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3284 OF 2017
1) Ramesh s/o Champatrao Yeole,
Aged about 38 years, Occ.- Nil,
R/o Watbori, Po. Jodmoha,
Tq. Kalamb, District Yavatmal.
2) Sanjay s/o Bhaskar Malikar,
Aged about 38 years, Occ. - Nil,
R/o Dhanora, Po. Wadgaon P.S.,
District Yavatmal. .... PETITIONERS
VERSUS
1) Chief Conservator of Forest (T),
Yavatmal Circle, Yavatmal.
2) Deputy Conservator of Forest,
Yavatmal Forest Division,
Yavatmal.
3) Range Forest Officer (E.G.S.),
Yavatmal, T.D. Yavatmal. .... RESPONDENTS
______________________________________________________________
Shri D. Chambhare, Counsel for the petitioners,
Shri N.H. Joshi, Assistant Government Pleader for the respondents.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 14-09-2018
DATE OF PRONOUNCING THE JUDGMENT : 29-10-2018
JUDGMENT :
Heard Shri D. Chambhare, learned Counsel for the ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 2 wp3284.17 petitioners and Shri N.H. Joshi, learned Assistant Government Pleader for the respondents.
2. Rule. Rule made returnable forthwith by consent of the learned Counsel for the parties.
3. The petitioners-employees are complainants in Complaint (ULP) 16/2010 which is allowed by the Labour Court, Yavatmal on 30-9-2014 with a direction that the respondents-employer reinstate the employees with 50% back-wages. This order is assailed by the employer in Revision (ULP) 14/2014 which is decided by the Industrial Court, Yavatmal along with Revision 12/2014 and 13/2014 by common judgment dated 22-4-2016. The Industrial Court partly allowed the revisions, set aside the judgments of the Labour Court and remanded the complaints to the Labour Court with a direction that the maintainability of the complaints be adjudicated.
4. Before the necessary facts are set out, it would be apposite to note the thought process of the Industrial Court.
5. The Industrial Court referred to the decision of the Apex ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 3 wp3284.17 Court in Vividh Kamgar Sabha v. Kalyani Steels Ltd. reported in 2001 I CLR 532 (SC) and observed thus :
"This view of Hon'ble Supreme Court was confirmed by Hon'ble Supreme Court in various case laws. Therefore, it is well settled principles that unless the relationship between both the parties as employer and employee is admitted or undisputed then only complaint under Section 28 of the MRTU and PULP Act is maintainable. But the learned Labour Court not considered this settled law and decided the disputed relationship and finally concluded that the respondents are employees of the petitioners. The learned Labour Court has committed illegality without following the principles laid down by Hon'ble Supreme Court in the case law (Supra). Considering the law laid down by the Hon'ble Supreme Court, the Labour Court or Industrial Court has no jurisdiction to frame the issue and allow the parties to lead evidence. Therefore, in my opinion, all the revisions are liable to be allowed by interfering in impugned orders and judgment of learned Labour Court. In the discussed facts and circumstances, in my opinion, the matters are required to be remanded to learned Labour Court to decide maintainability of the complaints considering the law laid down by Hon'ble Supreme Court as discussed above. Hence points are answered accordingly and I pass the following order."
FACTS :
6. The employees instituted Complaint 16/2010 under Section 28 of the Maharashtra Recognition of the Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("PULP Act" for short) contending that they rendered services from the date of appointment till 30-03-2010 i.e. the date of termination, as labour.::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 :::
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7. The employees-petitioners 1 & 2 herein averred that they were appointed on 01-9-1993 and 01-7-1997 respectively.
8. The substratum of the complaint is that the employees were terminated abruptly and in gross violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 and Rules framed thereunder.
9. The employees specifically averred that the work in which they were engaged is of regular and perennial nature. The employees further averred that the employer is falsely contending that the employees were engaged under the Rural Employment Guarantee Scheme. A categorical assertion is made that the employees were appointed by the Tahsildar nor were paid by the Tahsildar in accordance with the Maharashtra Employment Guarantee Act and the Rules framed thereunder.
10. The employer filed written statement and it would be necessary to scrutinize the averments in the written statement in some detail and minutely, since the Industrial Court has recorded a finding that the employee-employer relationship is neither admitted nor is ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 5 wp3284.17 indisputable and, therefore, the employees could not have invoked the provisions of the PULP Act.
11. In response to paragraph 1 of the complaint, the employer asserts that since the employees were working under the Rural Employment Guarantee Scheme, the question of existence of employee- employer relationship does not arise. The further assertion is that the employees were not issued appointment orders as permanent employees, at any point of time. Perusal of the response to paragraphs 2 to 10 of the complaint would reveal that the substratum of the defence is that though the employees were working as labour at the plantation sites of the employer, they were working under the Rural Employment Guarantee Scheme. The contention of the employer appears to be that since the work under the said scheme ceased to exist, work could not be made available to the employees.
12. The employees examined Ramesh Champatrao Yeole and Sanjay Bhaskar Malikar in support of the complaint while on behalf of the employer Nitin Vasant Wankhede stepped into the witness box.
13. In view of the denial of the employer of the employee- ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 :::
6 wp3284.17 employer relationship, it would be necessary to consider the deposition of Shri Nitin Wankhede-the sole witness examined on behalf of the employer. The examination-in-chief is in consonance with the averments in the written statement. In the cross-examination, Shri Nitin Wankhede admits that no material is produced on record to show that the employees were deputed to the Forest Department by the Tahsildar. The witness further admits that the employees were in continuous employment since the date of appointment, as pleaded in the complaint, till the date of termination and that the provisions of the Act were not followed. It is further extracted in the cross-examination that the plantation and nursery work continues to be available in the Forest Department and the said work necessitates employment of labour. The witness further admits that since the department required the services of labour, the labour named in Exhibit 27-As were proposed to be regularized. It is further admitted by Shri Nitin Wankhede that till 2006 the employees were paid by the Forest Department and it was only thereafter that the employees received payment through the Tahsildar. It is further admitted that no material is placed on record to show that since the date of appointment the employees were working under the Rural Employment Guarantee Scheme.
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14. The Labour Court has noted that Exhibit 27-A is a list of 766 Forest Labour which does not include the names of labour engaged under the Rural Employment Guarantee Scheme. The Labour Court further notes that Exhibit 29 which is a list of 970 Forest Labour who were recommended for regularization on the premise that in the preceding five years each of them has rendered more than 240 days of service in the calendar year. The names of the employees are mentioned in the said list Exhibit 29 and it is recorded under the column, "days worked under the Employment Guarantee Scheme" that none of the employees worked under the said scheme. In view of the course which I propose to adopt, it may not be appropriate to consider the evidence on record in depth and to record decisive finding. The Industrial Court has not considered the evidence on record. The Industrial Court further failed to appreciate that a bare statement of denial of employee-employer relationship is not sufficient to oust the jurisdiction of the Labour Court under the PUPL Act. If a bare denial of employee-employer relationship, without disclosing the name of the actual employer, is held to be sufficient to take away the jurisdiction of the Labour Court under the PULP Act, an unscrupulous employer would be in a position to delay the adjudication of the dispute by taking an ex ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 8 wp3284.17 facie false plea that there is no employee-employer relationship. It must be noted that the denial of employee-employer relationship in the written statement is a guarded denial. The employer admits that the employees worked at the plantation sites of the employer. Be it noted that it is not the case of the employer that the employees were engaged through contractor or that they are employees of some other organisation. The denial of employee-employer relationship is predicated only on the premise that since the employees are engaged under the Rural Employment Guarantee Scheme, there is no employee- employer relationship. The labour Court has recorded a finding that there is no material on record to suggest that when the employees were engaged for the first time, they were engaged under the Rural Employment Guarantee Scheme. Even if it is assumed arguendo that after the initial engagement the employees were assigned work under the Rural Employment Guarantee Scheme and for a certain period were paid wages under the Scheme, it cannot be said that there was no employee-employer relationship in existence. The status of the employees cannot be altered subsequent to the initial engagement by providing them work under the Rural Employment Guarantee Scheme.
15. The learned Assistant Government Pleader Shri N.H. Joshi ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 9 wp3284.17 has invited my attention to the following decisions :
1) Maharashtra Industrial Development Corporation v.
Member, Industrial Court, Nagpur reported in 2006(4) Mh.L.J. 21,
2) Bhaskar Janardhanrao Vaidya v. Member, Industrial Court, Amravati and others reported in 2010 (3) Mh.L.J. 349.
3) Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. and Others reported in (2004) 3 SCC 514.
16. Shri D. Chambhare, learned Counsel for the petitioners relies on the decision of the Apex Court in Nihal Singh and others v. State of Punjab and others reported in (2013) 14 SCC 65.
17. In Maharashtra Industrial Development Corporation v. Member, Industrial Court, Nagpur, the contention of the Corporation was that the complainant was an employee of the contractor. In Bhaskar Janardhanrao Vaidya v. Member, Industrial Court, Amravati and others, the contention of the Sport Academy was that the complainant was an employee of Hanuman Vyayam Prasarak Mandal whose services were borrowed to start the Sports Academy at Amravati. In Workmen of Nilgiri Co-operative Marketing Society ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 10 wp3284.17 Ltd. v. State of T.N. and others, again the issue was whether the complainants were employees of the principal of employer or the contractor. In Vividh Kamgar Sabha v. Kalyani Steels Ltd., which decision of the Apex Court is referred to by the Industrial Court in the order impugned, the question was whether the canteen workers were employees of the company. The claim of the union was that although their members are actually the employees of the company, as a camouflage the company notionally engaged the contractor to run the canteen.
18. At this stage, few striking features brought into sharp focus from the material on record may be noticed. The employer did not deny that the employees continuously worked at its plantation sites. The plea taken is that since the employees were engaged under the Rural Employment Guarantee Scheme, there is no employee-employer relationship. The plea is negatived by the Labour Court noticing that there is no material on record to suggest that the initial engagement of the employees was under the Rural Employment Guarantee Scheme. It is not the case of the employer, that the complainants are employees of a contractor or that the complainants did not work at the plantation sites of the employer or that the complainants are employees of some ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 11 wp3284.17 other person or organization. The defence simplicitor is that since the work was provided under the Rural Employment Guarantee Scheme, there is no employee-employer relationship. It would not be necessary to consider in detail the decisions on which the learned Assistant Government Pleader Shri N.H. Joshi has relied. There cannot be any quarrel with the proposition that the jurisdiction under the PULP Act can be invoked only if the employee-employer relationship is admitted or is irrefutable unless of course the industry, is governed by the provisions of the Maharashtra Industrial Relations Act, 1946 which treats the employees of contractor as employees of the principal employer. However, it must be borne in mind that the denial of employee-employer relationship must be categorical and unambiguous and not guarded. The adjudicating fora, would also be entitled to examine whether the relationship of employee-employer was admitted at some stage and then the employer shifts the stand at a subsequent stage. In such a situation, as is enunciated by the Division Bench of this Court in Hindustan Coca Cola Bottling vs. Bhartiya Kamgar Sena reported in (2001) 3 CLR 1025, the adjudicating fora under the PULP Act would be entitled to decide the issue of employee-employer relationship as an incidental issue. It would be necessary to note in brief the factual matrix in Hindustan Coco Cola Bottling vs. Bhartiya ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 12 wp3284.17 Kamgar Sena. The complaints were filed on the assertion that the employees were working under the supervision and control of the management of the company and that the employees were falsely lebelled as contract labour engaged through the contractors. It is in this context, that the Division Bench noted the observations of the Apex Court in Cipla Ltd. v. Maharashtra General Kamgar Union & Ors. reported in 2001 I CLR 754 in paragraphs 10 and 11 which read thus :
"10. 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 is observed by the Supreme Court in para 7 as under :--
"7. But one thing is clear - if the employees are working under a contract covered by the Contract Labour (Regulation and Abolition) Act then it is clear that 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 Government to abolish the same. If the case put forth by the workmen is that they have been directly employed by the appellant 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 Act. The object of the enactment is, amongst other aspects, enforcing provisions relating to unfair labour practices. If that is so, unless it is undisputed or indisputable that there is employer-employee relationship between the parties, the question of unfair practices cannot be inquired ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 :::
13 wp3284.17 into at all. The respondent union came to the Labour Court with a complaint that the workmen are engaged by the appellant through the contractor and though that is ostensible relationship the true relationship is one of master and servant between the appellant and the workmen in question. By this process, workmen repudiate their relationship with the contractor under whom they are employed but claim relationship of an employee under the appellant. That exercise of repudiation of the contract with one and establishment of a legal relationship with another can be done only in a regular Industrial Tribunal/Court under the I. D. Act."
11. As regards the question as to whether Section 32 of the Act confers such powers on the Labour Court or Industrial Court, the Supreme Court in terms held :
"Section 32 would not enlarge the jurisdiction of the court beyond what is conferred upon it by other provisions of the Act. If under other provisions of the Act the Industrial Tribunal or the Labour-Court has no jurisdiction to deal with a particular aspect of the matter, Section 32 does not give such power to it. In the cases at hand before us, whether a workmen can be stated to be the workmen of the appellant establishment or not, it must be held that the contract between the appellant and the second respondent is a camouflage or bogus and upon such a decision it can be held that the workmen in question is an employee of the appellant establishment. That exercise, we are afraid, would not fall within the scope of either Section 28 or Section 7 of the Act, In cases of this nature where the provisions of the Act are summary in nature and give drastic remedies to the parties concerned elaborate consideration of the question as to relationship of employer-employee cannot be gone into. If at any time the employee concerned was indisputably an employee of the establishment and subsequently it is so disputed, such a question is an incidental question arising under Section 32 of the Act. Even the case pleaded by the respondent-union itself is that the appellant establishment had never recognised the workmen mentioned in Exhibit "A"
as its employees and throughout treated these persons as the employees of the second respondent. If that dispute existed ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 14 wp3284.17 throughout, we think, the Labour Court or the Industrial Court under the Act is not the appropriate court to decide such question, as held by this Court in General Labour Union (Red. Flag) Bombay v. Ahmedabad Mfg. and Calico Printing Co. Ltd and Ors. (supra), which view was reiterated by us in Vividh Kamgar Sabha v. Kalyani Steels Ltd. and Anr., 2001 (I) CLR 532 SC."
The Division Bench in Hindustan Coco Cola Bottling vs. Bhartiya Kamgar Sena further observed in paragraph 13 which reads thus :
"13. 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 the employer- employee relationship is undisputed or indisputable then the complaint under the MRTU & PULP Act would be maintainable. We hasten to add that as pointed out by the Supreme Court in Cipla Ltd. if at any time the employer-employee relationship 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 MRTU & PULP Act will have no jurisdiction to entertain the complaint unless the status of relationship of employer-employee is first determined in a proceedings under the Industrial Disputes Act."
It is, therefore well settled, that if at any time the employee-employer relationship is recognised by the employer and subsequently it is disputed, such a question would be incidental ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 15 wp3284.17 question arising under Section 32 of the Act and the fora under the PULP Act would be competent to decide such question.
19. In my opinion, if the pleadings are considered holistically, there is no serious dispute qua the employee-employer relationship. It is clear from the written statement of the employer, that the denial is entirely based on the assumption that since the employees are engaged under the Rural Employment Guarantee Scheme, there is no employee- employer relationship. It is not even the case of the employer, that the employees were engaged through contractor or are actually employees of some other person or organisation. In the evidence, it is extracted in the cross-examination of the sole witness examined by the employer that there is no material to suggest that when the employees were initially appointed, they were appointed under the Rural Employment Guarantee Scheme. Au contraire, it is admitted that no material is placed on record to show that the employees were deputed to the Forest Department by the Tahsildar. It is further admitted that the employees were paid by the Forest Department till 2006 and it was only thereafter that the employees received payment through the Tahsildar. A significant admission is given that there is no material placed on record to show that since the date of appointment the ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 ::: 16 wp3284.17 employees were working under the Rural Employment Guarantee Scheme. The submission that the employees are engaged under the Rural Employment Guarantee Scheme, may have relevance, if at all, in moulding the relief if the Industrial Court comes to the conclusion that work is no longer available. However, as observed supra, that the employees were engaged under the said scheme would not per se indicate that they are not employees of the Forest Department.
20. In this view of the matter, the judgment of the Industrial Court is unsustainable. However, since the Industrial Court has not looked into the evidence nor has decided the other issues arising, it would be appropriate to remit the matter to the Industrial Court for deciding the revisions afresh in the light of the observations supra. The Industrial Court shall re-examine the pleadings, and if necessary the evidence, and then record finding on whether the employee-employer relationship is indisputable or irrefutable. The Industrial Court shall record the finding on the said issue along with the findings on the other issues arising. This exercise shall be done within six months.
21. The interim order, if any, operating in the petition shall continue to operate till the final disposal of the revisions. ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 :::
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22. Rule is made absolute in the afore stated terms.
JUDGE adgokar ::: Uploaded on - 29/10/2018 ::: Downloaded on - 02/11/2018 01:07:24 :::