Bombay High Court
Birla Cotsyn (India) Ltd vs Tarachand S/O Chiranjilal Sharma on 26 August, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 5317, 5318 & 5319 OF 2009.
.........
WRIT PETITION No. 5317/2009.
Birla Cotsyn (India) Ltd.,
A-82, MIDC, Khamgaon, Tah. Khamgaon
District Buldhana, through its General
Manager (P&A), Shri O.B. Sharma,
r/o. Khamgaon, Tah. Khamgaon,
District Buldhana. ....PETITIONER.
VERSUS
1. Tarachand s/o Chiranjilal Sharma,
Aged 53 years, R/o. Smruti sadan,
Sarafa, Tahsil Khamgaon,
District Buldhana.
2. The Labour Court,
Deosingh Bhavan, Bhonde Sarkar
Chowk, Near General Hospital,
Buldhana.
3. The Member, Industrial Court,
Shrikant Super Market, APMC Road,
Near Rajkamal Talkies,
Akola. ....RESPONDENTS
.
.........
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2
WRIT PETITION No. 5318/2009.
Birla Cotsyn (India) Ltd.,
A-82, MIDC, Khamgaon, Tah. Khamgaon
District Buldhana, through its General
Manager (P&A), Shri O.B. Sharma,
r/o. Khamgaon, Tah. Khamgaon,
District Buldhana. ....PETITIONER.
VERSUS
1. Shatrughna s/o Purnaji Bhise,
Aged 53 years, Residing Near Hanuman
Mandir, Gopal Nagar, at and post Khamgaon,
Tah. Khamgaon, District Buldhana.
2. The Labour Court,
Deosingh Bhavan, Bhonde Sarkar
Chowk, Near General Hospital,
Buldhana.
3. The Member, Industrial Court,
Shrikant Super Market, APMC Road,
Near Rajkamal Talkies,
Akola. ....RESPONDENTS
.
.........
WRIT PETITION No. 5319/2009.
Birla Cotsyn (India) Ltd.,
A-82, MIDC, Khamgaon, Tah. Khamgaon
District Buldhana, through its General
Manager (P&A), Shri O.B. Sharma,
r/o. Khamgaon, Tah. Khamgaon,
District Buldhana. ....PETITIONER.
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3
VERSUS
1. Sawarmal s/o Laluram Sharma,
Aged about 52 years, R/o. Near
Natraj Garden Road, at and Post
Khamgaon, Tah. Khamgaon,
District Buldhana.
2. The Labour Court,
Deosingh Bhavan, Bhonde Sarkar
Chowk, Near General Hospital,
Buldhana.
3. The Member, Industrial Court,
Shrikant Super Market, APMC Road,
Near Rajkamal Talkies,
Akola. ....RESPONDENTS
.
-----------------------------------
Shri V.R. Thakur with Shri H.V. Thakur, Advocate for Petitioner.
Shri S.D. Thakur with Shri P.S. Kshirsagar, Advocate
for respondent no.1 in all petitions.
Learned AGP for respondent nos. 2 and 3 in all petitions.
------------------------------------
CORAM : B.P. DHARMADHIKARI, J.
Date of reserving the Judgment. - 4th August, 2010.
Date of Pronouncement. - 26th August, 2010.
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4
JUDGEMENT.
1. Challenge in all this three writ petitions is to identical orders passed by Labour Court appeal by Industrial Court in revisions. All complaints are under Section 28 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as ULP Act). Contention of Employer Petitioner in short in all matters is Labour Court or Industrial Court could not have gone into the question of disputed status of respective respondent no.1 in all these Writ Petitions as these courts under Section 28 exercise summary jurisdiction. Hence, only when relationship of employer and employee is either undisputed or indisputable, the jurisdiction can be exercised.
Looking to the nature of controversy and at the request of parties, matters have been heard finally at admission stage by making Rule returnable forthwith.
I have heard Shri V.R. Thakur with Shri H.V. Thakur, learned Counsel for Employer/Petitioner and Shri S.D. Thakur with Shri P.S. Kshirsagar, learned Counsel for respective respondent no.1. Learned AGP has appeared for respondent nos. 2 and 3.
2. Respondent no.1 in Writ Petition No. 5318/2009 has filed ::: Downloaded on - 09/06/2013 16:19:59 ::: 5 ULP complaint 26/2008 challenging his oral termination dated 22/7/2008 on 19/8/2008. Petitioner / Employer filed written statement and also an application at Exhibit -10 to dismiss that complaint as not tenable stating that employee was working as finishing supervisor/shift-in- charge in managerial and administrative capacity at the time of his termination. Labour Court passed an order on this objection on 03.03.2009 and framed preliminary issue about maintainability of complaint. It recorded evidence on that issue and passed order holding complaint to be maintainable. It held that employee was working in supervisory capacity but his basic pay was only Rs. 5852/- i.e. less than Rs. 6500/- per month and hence, he did not go out of definition of employee as given in Section 3 (13) of Bombay Industrial Relations Act, 1947; hereinafter referred to as BIR Act.
Petitioner then challenged that order in revision under section 44 of ULP Act in ULP Revision No.24/2009. On 12/8/2009 Industrial Court dismissed that revision. Labour Court thereafter on 6/10/2009 passed order below Exhibit 2 and granted relief of interim reinstatement with direction to pay 50% back wages from the date of termination till his reinstatement . These orders dated 21/4/2009 and 6/10/2009 of Labour Court and order dated 12/8/2009 of Industrial Court are questioned in Writ Petition No. 5318/2009. Respondent no. 1 in Writ Petition ::: Downloaded on - 09/06/2013 16:19:59 ::: 6 No.5317/2009 filed ULP complaint 20/2008 challenging oral termination on 23/7/2008. Similar type of application at Exhibit 16 to dismiss his ULP complaint was preferred by Employer and on 3/3/2009, Labour Court framed preliminary issue. After appreciating evidence of parties, on the 21/4/2009 it rejected that application holding that there was no evidence that duties of employee were either managerial or supervisory and his basic pay was Rs. 5446/- i.e. less than Rs. 6500/- per month. Employer challenge this in ULP Revision No. 25/2009 and by common judgment dated 12/8/2009 that revision came to be rejected.
Thereafter on 6/10/2009, Labour Court allowed prayer of employee for interim relief and directed employer to reinstate him with further direction to pay 50% back wages from termination till reinstatement.
These three orders form subject matter of challenge in Writ Petition No. 5317/2009. Respondent no. 1/Employee in Writ Petition No. 5319/2009 filed ULP Complaint No.28/2008 alleging oral termination on 1/9/2008.
Petitioner raised similar objection then by filing application at Exhibit 11 and vide order dated 3/3/2009, Labour Court framed preliminary issue.
On 21/4/2009 it passed an order rejecting application at Exhibit 11 holding that employee was not performing administrative or supervisory function. It also found that his basic pay was Rs. 5754/- only. ULP Revision No. 24/2009 preferred by Employer was dismissed by Industrial ::: Downloaded on - 09/06/2013 16:19:59 ::: 7 Court by common judgment dated 12/8/2009 mentioned above.
Thereafter on 6/10/2009, Labour Coat granted employee relief of interim reinstatement with further direction to pay him 50% back wages from the date of termination till his reinstatement. These three orders are challenge by Employer in Writ Petition No. 5319/2009.
3. Shri V.R. Thakur, learned Counsel for Employer/Petitioner has contended that basically three issues arise for determination in these matters. Various judgments cited before Labour Court or Industrial Court to show summary nature of its jurisdiction have not been appreciated correctly and hence, when status of respondent no.1 as employee is in dispute, Courts could not have embarked upon enquiry to determine that status. After noticing that the objection was not raised mala-fide, ULP Complains ought to have been dismissed. His contention is presence of independent contractor is not essential and restriction is upon power of Court. He has invited attention to various judgments to urge that finding about limited jurisdiction recorded there is not on account of presence of contractor. He also cited some precedents where similar restriction is found even in absence of contractor. In view of this line of arguments, I find it appropriate to consider the same along with relevant judgments . His next contention is "basic pay" as envisaged in section 3 ::: Downloaded on - 09/06/2013 16:19:59 ::: 8 (13) of BIR Act also includes contribution to provident fund by employer and bonus paid every year. He is taking support from definition of "wages" in Section 3 (39) of BIR Act. He has invited attention to salary certificate dated 3/3/2009 of the respondent no.1 in Writ Petition No. 5318/2009 to show that if employers PF contribution of Rs.702/- and proportionate monthly bonus of Rs.825/- is added to his basic, it exceeds ceiling of Rs. 6500/- and said respondent no.1 travels out of definition of "employee".
4. Shri S.D. Thakur with Shri P.S. Kshirsagar, learned Counsel for respective respondent no.1/Employee has urged that arguments being advanced or objection as raised is too technical and none of the precedents cited before this Court support the same. According to learned Counsel Hon'ble Apex Court has nowhere laid down a law that disputed issue of status cannot be resolved by Courts functioning under ULP Act . He vociferously argued that there is nothing in ULP Act to show that jurisdiction exercised thereunder is summary in nature. In any case, according to him controversy stands concluded by Division Bench judgment of this Court and as in present facts, there is no contractor, learned Single Judge cannot take any other view and impugned orders deserve to be upheld. He has invited attention to a ::: Downloaded on - 09/06/2013 16:19:59 ::: 9 consideration of nature of duties by Labour Court to urge that issue of "basic pay" is totally irrelevant. He has also cited some judgments of Hon'ble Apex Court to explain how the ratio in precedents needs to be deciphered and applied under Article 141. Judgment reported at 1994 Mah.L.J. 1004 - (Municipal Corporation of City of Amraoti vs. Ashok Ramkrishna Kamble) is relied upon by him to show meaning of phrase "basic pay". According to him, no allowance can be added to basic pay to find out whether it exceeds ceiling limit.
5. I find it appropriate first to consider the question of basic pay.
Both learned Counsel have taken recourse to definition of wages in Section 3(39) to explain it. Section 3 (13) of Bombay Industrial Relations Act, 1946 defines employee as under: --
"employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes --
(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause (e) of clause (14);
(b) a person who has been dismissed, discharged or retrenched or whose services ::: Downloaded on - 09/06/2013 16:19:59 ::: 10 have been terminated from employment on account of any dispute relating to change in respect of which notice is given or an application made under Section 42 whether before or after his dismissal, discharge, retrenchment or, as the case may be, termination from employment.
but does not include --
(i) a person employed primarily in the managerial, administrative, supervisory or technical capacity drawing basic pay excluding allowances exceeding 6500 rupees per month:
(ii) any other person or class of persons employed in the same capacity as those specified in clause (i) above irrespective of the amount of the pay drawn by such persons which the State Government may, by notification in the official Gazette, specify in this behalf.
Other relevant definition is contained in subclause (39) of Section 3 and it reads :-
(39) "wages" means remuneration of all kinds capable of being expressed in terms of money and payable to an employee in respect of his employment ::: Downloaded on - 09/06/2013 16:19:59 ::: 11 or work done in such employment and includes --
(i) any bonus, allowances (including dearness allowance), reward or additional remuneration;
(ii) the value of any house accommodation, light, water, medical attendance or other amenity or service;
(iii) any contribution by the employer to any pension or provident fund;
(iv) any travelling allowance or the value of any
travelling concession;
(v) any sum paid or payable to or on behalf of an
employee to defray special expenses entailed on him by the nature of his employment;
(vi) gratuity payable, if any.
6. Bare perusal of definition of wages above shows what is to be included in it and not that that cannot be included. Its opening part uses the word "means" and thus shows legislative intention of its exhaustive nature. But then words therein give it a very wide sweep to cover all entitlements of an employee. Despite this, it also uses the words "and includes" and then lists various other payments in the shape of reimbursement or concession or allowances. Contribution to pension or provident fund and also payment of gratuity depends upon number of ::: Downloaded on - 09/06/2013 16:19:59 ::: 12 employees available in the establishment of employer. Hence, that payment may not be available where though employment is of a same nature, number of employees is less or then because power i.e. electricity is not used in manufacturing process. Similarly traveling allowance or value of any traveling concession may not be a service condition in all employments. Payment under sub-clause (v) also will depend upon terms and conditions of contract which individual has or then upon the nature of his employment. Reward or additional remuneration under sub-clause (i), reimbursement towards accommodation, light, water charges, medical attendance or other similar amenity or service is not a uniform service condition everywhere and its quantum is bound to differ from employer to employer. In present facts, in Writ Petition No. 5318/2009, though there is a finding that respondent no. 1- S.P. Bhise is working in supervisory capacity as his basic wage/pay is found to be Rs.
5852/-- per month which is below the prescribed limit of Rs.6,500/-- per month, he is held an "employee". Effort of petitioner employer is to add bonus of PF contribution so that his basic exceeds that limit. Submission is to construe phrase "basic pay" in the light of definition of "wages" and to add the allowances or reimbursement or concession falling in its inclusive portion. It is apparent that such an interpretation is not available because it then defeats the legislative intention in using both ::: Downloaded on - 09/06/2013 16:19:59 ::: 13 words like "means" and "includes" in Section 3 (39) of the BRA Act. This interpretation introduces different concept for examining whether a person is or is not an employee in different establishments depending upon his service conditions in that regard. A person showered with any allowance or concession may cross the prescribed limit and therefore will fall outside that definition while with other employer, he may qualify to be an employee. This will thus permit employers to manipulate said status and importance given to nature of duties will be lost. The paramount consideration in Section 3 (13) is to nature of duties and not to total wages. Word "basic pay" has been used deliberately there to indicate the fixed portion falling in substantive part of Section 3 (39) specified by using the word "means" is only intended to be covered and to ignore its variable part. This puts it beyond doubt that all contractual and statutory amounts payable on account of work done are not contemplated under it. Otherwise, there was no point in using different words and same word "wages" could have been employed in Section 3(13) also. Even word "basic wages" has not been used there. Basic pay always is understood as that part of total wage left after excluding all such variables like dearness allowance, over time, any reimbursement or concession etc. If the quantum of any such variable payment in the shape of allowance or reimbursement or concession is added, use of word ::: Downloaded on - 09/06/2013 16:19:59 ::: 14 "basic" stands defeated. Word basic has been employed to indicate original remuneration shown of all these additions which may be as per contract or as per law on the point. Language in substantive Section 3(39) is very wide because it is designed to meet a different contingency.
Same meaning to "basic pay" in scheme of Section 3 (13) of BIR Act militates not only with that scheme but also with intention in Section 3 (13) itself. Different norms cannot be applied to find out whether particular person is or is not an "employee" and primacy has to be given to nature of his duties. Legislature has made managerial, administrative, supervisory or technical work relevant only when it forms primary duty of such person and it is coupled with further requirement of excluding allowances. Words employed "drawing basic pay excluding allowances"
clearly mandate elimination of all allowances from consideration and said allowances find mention in inclusive part of Section 3 (39).
Legislation has attempted to apply one standard of earning on uniform basis for all such employees. Contention that payment of bonus or contribution of employer to PF or pension fund or gratuity is not an allowance and must be treated as part of "basic pay" also cannot be accepted looking to the spirit of both provisions. The use of words " pay"
or "wages" in the matter is not to indicate any different yardsticks and it is word "basic" qualifying the word "pay" which is decisive. It is also clear ::: Downloaded on - 09/06/2013 16:19:59 ::: 15 that words "basic pay" in Section 3 (13) can be and need to be construed in the light of Section 3(39) of BIR Act itself.
7. Perusal of judgment of Learned Single Judge of this Court in Municipal Corporation of City of Amraoti vs Ashok Ramkrishna Kamble (supra) shows that there the employee was working as junior engineer on the wages of Rs 72/-. He was an engineering graduate. In this background it has been found that a person who is being paid meagre salary even if he's doing managerial, administrative, supervisory or technical work is extended the protection and the words "basic pay excluding allowances" need to be interpreted with this idea in mind.
Dictionary meaning of "pay" from concise Oxford dictionary has been looked into and similarly meaning of word "basic" from said dictionary is also noticed. Basic has been found to mean simplest or lowest pay and in case of respondent therein it is found to exceed Rs 1000/- per month -
a ceiling limit then in force. Hence it was concluded that respondent was pushed out of protective zone of enactment. Rate of Rs 72/- per day was without any allowances and finding reached is on that basis. Here, respondent no. 1 is not receiving basic pay in excess of Rs 6500/- per month and payments like employers' share of provident fund or bonus or gratuity cannot be added to it. I, therefore, do not find anything wrong ::: Downloaded on - 09/06/2013 16:19:59 ::: 16 with application of mind by Labour Court in U.L.P. complaint filed by S.P. Bhise ie. respondent no.1 in Writ Petition No. 5318/2009.
In remaining 2 petitions, controversy pales into insignificance as duties of respective respondent no.1 therein are not found to be managerial, administrative, supervisory or technical in nature. Ceiling of Rs 6500/- per month is therefore irrelevant in their matters. It is important to note that findings on fact in this respect about nature of duties are not disputed by respective Counsel in any of 3 writ petitions.
8. The question about absence of jurisdiction needs to be addressed in the light of various pronouncements by this Court and by Hon'ble Apex Court. To avoid prolixity and reiteration, I will like to refer to recent judgment of this Court. Various judgments were required to be considered by me in 2006 (3) All M.R. 552-- (Maharashtra Industrial Development Corporation vs Member Industrial Court) and more recently in case of Bhaskar Vaidya vs. Member, Industrial Court reported at 2010 (3) Mh.L.J. 349. Recent judgment of Division Bench of this Court is reported at 2008 (1) LLJ 271--(Sarva Shramik Sangha vs. Janprabha Offset Works). Division Bench found that U.L.P. complaint filed by union was on behalf of of employees in printing presses who ::: Downloaded on - 09/06/2013 16:19:59 ::: 17 were claiming wages equal to employees in newspaper establishment.
Plea was printing presses and newspaper were part of same establishment and Industrial Court after denial in this respect by both establishments framed an issue and held that they were not separate establishments. Single Judge held that Industrial Court had no jurisdiction to entertain U.L.P. complaint raising such dispute. Various judgments on which both Counsel have relied before me were pressed in the service even in that matter and in paragraph 13, Division Bench proceeded to decide issue about jurisdiction. In paragraph 15 request made to Hon'ble Apex Court in Sarva Shramik Sangha vs. Indian Smelting & Refining Co Ltd and others (A.I.R. 2004 SC 269) to reconsider its earlier view by constituting a larger Bench and its rejection is also noticed. In paragraph 16, Division Bench found that when relationship is in dispute, Labour or Industrial Court has no jurisdiction to record a finding in that respect. It is apparent that no contractor is placed in said matter between employee and the employer, but ultimate relationship is being traced to newspaper establishment through immediate employer i.e. printing press. This judgment has been considered by me in Bhaskar Vaidya vs. Member, Industrial Court (supra). There employment with Sports Academy (public employment) was alleged contending that employee/he was employee of a private ::: Downloaded on - 09/06/2013 16:19:59 ::: 18 body and was orally asked for option to start work in sports academy and accordingly, employee claimed that he had started work. His grievance was, he received only meagre amount as honorarium that too through the private body. Consideration there shows that this Court noticed absence of contractor but then found some arrangement between private body and sports academy under which 5 employees were made available on loan by private body to latter and in view of other facts on record there, absence of direct relationship was also noticed. Even in Maharashtra Industrial Development Corporation vs Member Industrial Court (supra), I, have considered in detail all precedents and judgment of Hon'ble Apex Court in Sarva Shramik Sangha vs. Indian Smelting & Refining Co Ltd and others (others) in paragraph 9G, where observations of Hon'ble Apex Court in para 21 are extracted and relied upon. The extent to which Labour or Industrial Court can go is examined therein. It has been noticed that employee there nowhere asserted in his U.L.P. complaint that he was receiving wages from M.I.D.C. and he was contending that M.I.D.C. was his principal employer. He thus did not plead any direct relationship and only pointed out that his name appeared in the logbook of vehicle as driver. Employer had pleaded that employee had worked as driver under various contractors on rate list basis. Consideration in paragraph ::: Downloaded on - 09/06/2013 16:19:59 ::: 19 11 shows various facts looked into by this Court to note that relationship was neither undisputed nor indisputable. It is therefore obvious that in absence of direct relationship, same was sought to be pleaded and proved in that matter. Several judgments on which petitioner has placed reliance are looked into in above judgments either by me or by Division Bench. I, therefore, do not find it necessary to again individually mention or consider the same here.
9. Shri V.R. Thakur, learned counsel has attempted to draw a line of distinction by contending that law as settled by Hon'ble Apex Court or then by Division Bench of this Court does not lay down that only when contractor exists, the relationship can be said to be in dispute.
Shri S.D. Thakur, learned counsel has gone a step further to urge that appreciation of controversy by Hon'ble Apex Court in Sarva Shramik Sangha vs. Indian Smelting & Refining Co Ltd and others (supra) and all earlier matters is itself vitiated as it does not consider relevant provisions of U.L.P. Act. He has invited attention to judgment of Hon'ble Apex Court reported at (1995) 3 SCC 78 -- AIR 1995 S.C. 1137 (Shramik Utkarsh Sabha v. Raymond Woollen Mills Ltd.) to urge that U.L.P. Act and BIR Act are complementary to each other and jurisdiction of either Labour Court or Industrial Court under U.L.P. Act has been wrongly ::: Downloaded on - 09/06/2013 16:19:59 ::: 20 construed to be summary in nature. Hon'ble Apex Court has held that the B.I.R. Act was enacted to provide for the regulation of the relation of employers and employees in certain matters and to consolidate and amend the law in relation to the settlement of industrial disputes. The U.L.P. Act was enacted to provide for the recognition of trade unions for facilitating collective bargaining for certain undertakings; to state their rights and obligations; to confer certain powers on unrecognized unions;
and to define and provide for the prevention of unfair labour practices;
and to constitute courts in this behalf. It cannot, therefore, be said that the B.I.R. Act and the U.L.P. Act operate in different fields. A commonality in their objects and their provisions is found by Hon'ble Apex Court. The obvious intent of the legislature which enacted them was that they should operate in tandem and complement each other in respect of industries to which the B.I.R. Act had been made applicable.
Hence Hon'ble Apex Court stated that the two statutes must be read together. I do not find anything in these observations which militates with conclusions by Hon'ble Apex Court in Sarva Shramik Sangha vs. Indian Smelting & Refining Co Ltd and others (supra). In latter judgment, in paragraph 23 Hon'ble Apex Court has also given reasons for arriving at a particular construction. In paragraph 24, it is further pointed out that even if 2 forums are presumed to be available, the Court ::: Downloaded on - 09/06/2013 16:19:59 ::: 21 can always state which is more appropriate forum to have effective adjudication. In view of this law, I do not find any merit in contentions of respondent no. 1 and judgments relied upon by Shri S.D. Thakur like (2008) 1 SCC 494 - (Sarva Shramik Sanghatana (KV) v. State of Maharashtra) and (2010) 5 SCC 513-- (V. Kishan Rao v. Nikhil Super Speciality Hospital), to explain how the binding nature of a precedent is to be appreciated or understood, need not be gone into. Shri V.R. Thakur, learned counsel has attempted to show that Division Bench view of this Court in Fulchand Baburao Gedam vs. Lokmat Newspapers Ltd. reported at 2007 III CLR 619 that U.L.P. complaint is maintainable when issue of contract Labour is not involved either directly or indirectly, is also not correct. There the defence of employer was that employees were engaged by some of the officers for their personal work and were attending to their requirements and might be visiting the establishment of employer for that purpose. The facts therefore show that no relationship was being shown with any third employer over whom newspaper had no control and defence was of employment with some officers who were themselves in employment of respondent newspaper. I do not find anything even in said judgment to assist cause of petitioner even indirectly. Division Bench there has also considered several judgments and SLP against said view is also dismissed in motion ::: Downloaded on - 09/06/2013 16:19:59 ::: 22 by Hon'ble Apex Court. It is settled law that principle of merger is not attracted and such dismissal does not tantamount to declaration of law by Hon'ble Apex Court to constitute it in binding precedent. However developments in field of law need to be noticed in the background of all earlier judgments. In present matters, neither Labour Court nor Industrial Court has rejected preliminary objection of Petitioner/Employer because there is no intervention of an independent contractor. I therefore, do not find it necessary to delve more into said controversy here.
10. All the judgments referred to above clearly contemplate undisputed or indisputable relationship between contesting parties to enable Labour Court or Industrial Court to exercise jurisdiction under U.L.P. Act. Once relationship is accepted, contention that said Court can not examine nature of duties of such complainant employee or his status cannot be accepted. In present matters, only dispute is about nature of duties and petitioner has accepted master -- servant relationship with respective respondent no.1. Acceptance of that relationship itself confers jurisdiction even on courts functioning under U.L.P. Act to take cognizance. Whether such "servant" fits into the definition of "employee"
is a secondary question which can then be gone into by those courts in ::: Downloaded on - 09/06/2013 16:19:59 ::: 23 the light of law as settled. I find reliance by petitioner upon observations in paragraph 24 of Hon'ble Apex Court in Sarva Shramik Sangha vs. Indian Smelting & Refining Co Ltd and others (supra) is misconceived in present facts.
Judgment of learned Single Judge of this Court in 2009(6) Mh.L.J. 212 -- (Vidyut Metallics Pvt. Ltd. vs. Maharashtra Rajya Rashtriya Kamgar Sangh) considers the issue of maintainability of civil suit against union seeking recovery of damages for loss of business and notes that courts functioning under U.L.P. Act do not possess such jurisdiction. This judgment cannot be interpreted to state that even status of servant as an employee cannot be gone into by said courts.
(2005) 12 SCC 433- (Oswal Petrochemicals vs Government of Maharashtra) only follows settled law and does not advance the stand of petitioner.
2004 III CLR 530- (Quadricon Pvt. Ltd vs Maxi D'Souza and other) is the Division Bench judgment of this Court where in matter came to be remanded back to Industrial Court to find out whether relationship was undisputed or indisputable.
::: Downloaded on - 09/06/2013 16:19:59 ::: 24Facts in 2005 I CLR 658 -- (Maharashtra Engineering Plastics and General vs Little Kids and others) show that a stranger in the shape of respondent 3 was joined as party in U.L.P. complaint and respondent nos. 1 and 2 had no relation or connection with it. Respondents no.1 and 2 had pointed out that they had engaged eight employees and complainants were not in their employment. In 2006 II CLR 815-- (ICICI Bank Ltd vs Narendra R. Parmar), services were terminated by a subsidiary company and in U.L.P. complaint Bank as also its that subsidiary were joined as parties. In 2007 III CLR 982-- (Maharashtra State Cooperative Cotton Growers Marketing Federation vs Asha Josef D'mello), it was shown to learned Single Judge of this Court that witness for petitioner never admitted that respondents were appointed in clear post and legal relationship between parties was in dispute. However, this Court only noticed that Industrial Court has ignored the limited jurisdiction available to it and did not record any final finding about absence of jurisdiction. Challenge to termination was allowed to be prosecuted by employee before Labour Court in accordance with law.
None of the judgments therefore come to the rescue of present employer in these writ petitions. After the relationship is accepted, Court functioning under U.L.P. Act can examine nature of duties and find out ::: Downloaded on - 09/06/2013 16:19:59 ::: 25 basic pay to note whether provisions of welfare legislation can be extended to Complainant before it.
11. U.L.P. Act deals with various unfair labour practices and while recording of finding in relation to several of them, examination of nature of duties of complainant becomes relevant. While finding out whether transfer of complainant is to an equivalent post, whether there is unmerited promotion or reversion or then any reduction in rank or undue favour to any employee, victimization etc. such questions frequently arise. It cannot be accepted that Labour Court or Industrial Court can record evidence & deliver a finding about such equivalence or its absence at that stage and same exercise cannot be undertaken only because status of said Complainant employee is being assailed by pointing out that his work is primarily of managerial, supervisory, administrative or technical type. Only when there is genuine dispute about existence of employer-employee relationship which includes master-servant relationship, the summary jurisdiction prohibits further inquiry. Here, petitioner has not even attempted to point out why and how alleged dispute in relation to nature of duties performed by respective respondent no.1 in Writ Petition Nos. 5317 and 5319/2009 can be labeled as genuine and bonafide. It is not in dispute that their ::: Downloaded on - 09/06/2013 16:19:59 ::: 26 basic pay does not exceed Rs 6500/-- per month. In case of respondent no. 1 in Writ Petition No. 5318/2009, finding reached by Courts below is though he does work supervisory in nature, his basic pay is less than Rs 6500/--. Question whether amount of PF contribution, bonus can be added to basic pay to find out whether it exceeds Rs 6500/-- is already answered against petitioner above. No specific arguments as to why this question cannot be answered by Courts functioning under U.L.P. Act has been advanced. I find that a misconceived objection has been raised by petitioners and inquiry into status of complainant before it by Courts under U.L.P. Act cannot be equated with inquiry undertaken by it to find out whether relationship is undisputed or indisputable in the light of various judgments. Inquiry into relationship is an inquiry into fact whether it possesses necessary jurisdiction. Inquiry into status of complainant stands on altogether different pedestal and therein Court's jurisdiction to grant relief is not being scrutinized. In a given case, there may be more than one complainant before such Court and one or more of them may be found to possesses status necessary to invoke the jurisdiction of Court under U.L.P. Act. Entitlement of such complainant to such relief is under scanner here and hence, this inquiry cannot be equated with inquiry about its jurisdiction in case of disputed relationship. Inquiry into its own competence by such Court and an ::: Downloaded on - 09/06/2013 16:19:59 ::: 27 inquiry into entitlement of the complainant in U.L.P. complaint cannot be confused together. In summary jurisdiction also objection to such locus or entitlement can be gone into and answered by Court U.L.P. complaint. I, therefore, do not find anything wrong in jurisdiction as exercised by the Labour Court and as upheld by Industrial Court.
12. Grant of relief of back wages however cannot be viewed as interim relief and hence contention of petitioner that final relief has been given by Labour Court by awarding 50% back wages from the date of termination till date of reinstatement deserves to be accepted. Perusal of its orders show that same are passed on an application for grant of interim relief moved under Section 30 (2) of U.L.P. Act. It is also clear that parties have not produced any evidence on merits to justify or to assail alleged termination. However in last paragraph of this order, Labour Court has held that grant of full back wages would amount to deciding main complaint. Hence at interim stage, it has awarded 50% of said amount as back wages. It has not envisaged the situation in which it may be required to dismiss U.L.P. complaints finally on merit. Grant of back wages cannot be seen as an interim relief at least in the facts apparent from the impugned orders dated 6/10/2009 of Labour Court.
After recording a finding of unfair labour practice prima facie and ::: Downloaded on - 09/06/2013 16:19:59 ::: 28 possibility of irreparable loss, relief of interim reinstatement has been correctly awarded. No reasons are recorded why grant of 50% back wages is warranted as an interim measure and there is no consideration as to how petitioner Employer can recover back that amount if ultimately U.L.P. Complaints as filed are required to be dismissed. Hence said grant of back wages is unsustainable and deserves to be quashed and set aside.
13. In view of discussion above, all three writ petitions are accordingly partly allowed and impugned orders of Labour Court, Buldhana dated 6/10/2009 passed below Exhibit 2 in U.L.P. Complaint No. 26/2008, below Exhibit 2 in U.L.P. Complaint No.20/2008 and below Exhibit 2 in U.L.P. Complaint No.28/2008 are modified and respective direction to pay 50% back wages from the date of termination till reinstatement therein stands quashed and set aside. Its remaining portion and rest of the orders are maintained unaltered. Rule made absolute only to that extent with no orders as to costs.
JUDGE Rgd.
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