Bombay High Court
Fulchand Baburao Gedam vs Lokmat, Proprietors, Lokmat ... on 11 September, 2007
Equivalent citations: 2007(109)BOM.L.R.2029, (2008)ILLJ125BOM
Author: A.H. Joshi
Bench: A.P. Lavande, A.H. Joshi
JUDGMENT A.H. Joshi, J.
Page 2033 BACKGROUND:
1. These letters patent appeals arising out of common judgment and raising common question of law, are being disposed of by this judgment.
Page 2034 ADMITTED FACTS:
2. The appeals proceed on certain admitted premises, which are narrated as follows:
(a) The 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 & 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 as follows:
i) declare 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 & 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 respondent Company.
RESPONDENT/EMPLOYER'S PLEA BEFORE INDUSTRIAL COURT.
3. The employer opposed the complaints on following grounds:
(a) the 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 the respondent.
Page 2035
4. 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 the complainants.
5. The Industrial Court rendered a common judgment dated 12-2 2000, thereby allowing the complaints, and declaring the employer's action to be by way of unfair labour practice.
6. Aggrieved by Judgment of Industrial Court, the employer filed separate Writ Petitions. Writ Petitions were heard and decided by common judgment, and order dated 27-11-2002. By this judgment, the rule was made absolute, and common judgment dated 12-2-2000 was set aside and complaints were dismissed.
FINDINGS IN JUDGMENT UNDER APPEAL:
7. Learned Single Judge recorded the finding as to the maintainability of complaints under MRTP and PULP Act as follows:
20...
In 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), Bombay v. Ahmadabad Mit. & Calico Printing Co. Ltd., and Ors., (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 & PULP Act with a case that actually they are the employees of the company which has engaged thom 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 the respondent-Company and 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 as employer-employee relationship 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 Page 2036 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 of employer-employee relationship, 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. v. 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 Tribhjnals 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 inflouenced 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.
9. The Letters Patent Appeals were filed beyond period of limitation. The prayer for condonation of delay was rejected by this Court. The appellants, therefore, approached the Hon'ble Supreme Court, by filing separate Special Leave Petitions. Apex Court while allowing appeals by order dated 8-9-2006, condoned the delay caused in filing Letters Patent Appeals,, and directed the Letters Patent Appeals to be disposed of on merits at an early date.
10. The Letters Patent Appeals were accordingly admitted by this Court on 12-12-2006. Hearing of appeal was delayed due to confusion as to Page 2037 which of the Benches should hear the appeals. Ultimately, the appeals were listed before this Division Bench and were heard on merits.
SUBMISSIONS:
11. The submissions of learned Advocate Mr. Thakur may be summarized as follows:
(a) This is a case where admittedly the complainants claimed that they were employed by the employer Company and the employer pleaded that the complainants were employed by the Officers of the employment in their personal capacity, and as such issue of contract labour was not involved, even remotely.
(b) The cases which are relied upon to non suit the appellants have been wrongly relied upon, though they do not apply to the issue involved in the case, because Learned Single Judge failed to advert to the pleadings of the workmen.
(c) The Judgments relied upon by learned Single Judge, apply only when on facts workmen employed allegedly through Contractor claim to be employed directly, or demand absorption in the services of the employer or seek a declaration that Contract is sham, bogus or a camouflage.
(d) According to learned Advocate for the appellant, the direction of learned Single Judge while allowing the Writ Petition given to the State Government to consider the complaints of the workmen as the demand or dispute for the purpose of reference, is otiose since demand by the workmen was not for:
(1) abolition of contract labour, (2) declaration that a mechanism of contract is sham and bogus,or (3) for abolition of existing contract of labour, or (4) any other demand of the same category.
12. Learned Advocate Shri S. D. Thakur for the appellants placed reliance on following judgments:
(1) 1995 Supp (1) Supreme Court Cases 175, General Labour Union (RED FLAG),Bombay. v. Ahmedabad Mfg. & Calico Printing Co. Ltd. and Ors.
(2) , Vividh Kamgar Sabha v. Kalyani Steels Ltd and Ors.
(3) (2001)3 Supreme Court Cases 101, Cipla Ltd. v. Maharashtra General Kamgar Union and Ors.
(4) (2001)7 SCC Steel Authority of India Ltd., and Ors. v. National Union Waterfront workers and Ors.
Page 2038 (5) Sarva Shramik Sangh v. M/s Indian Smelting & Refining Co. Ltd. and Ors.
(6) , Shramik Uttarsh Sabha v. Raymond Woollen Mills Ltd. and Ors.
(7) S.G. Chemicals Employees Union v. S.G. Chemicals Ltd. 1986 I LLJ 490 SC.
(8) , Chief Conservator of Forests and Anr. v. Jagannath Maruti Kondhare and Ors.
(9) 1957 I LLJ 477 (SC) Dharangadhra Chemical Works v. State of Saurashtra and Ors.
(10) , H. R. Adyanthaya and Ors. v. Sandoz (India) Ltd., and Ors.
(11) 1971(1) Supreme Court Cases 85, H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Ors. v. Union of India and Anr.
(12) , Hameed Joharan (Dead) and Ors. v. Abdul Salam (Dead) by Lrs and Ors.
(13) , Haryana Financial Corporation and Anr. v. Jagdambha Oil Mills and Anr.
(14) , Union of India v. Chajju Ram (dead) by Lrs and Ors.
(15) 2001 II CLR 982 R. P. Sawant and Ors. v. Bajaj Auto Ltd. and Anr.
(16) 1975 (Supp.) Supreme Court Cases 1, Shri Raj Narain v. Shri Raj Narain and Anr.
Page 2039 (17) , Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors.
(18) , M. Pentiah and Ors. v. Muddala Veeramallappa and Ors.
(19) , Ramesh Chandra Sahu v. N. Padhy Principal, Khallikote College, Berhampur.
(20) , Kanak Sunder v. Ram Lakhan.
(21) , P.L. Kantharao and Ors. v. State of A. P. and Ors.
(22) 2002 I LLJ 380, Hindustan Coca Cola Bottling v. Bhartiya Kamgar Sena.
(23) , Gujarat Electricity Board v. Hind Mazdoor Sabha and Ors.
The Judgments at item No.5,6 & 22 are cited to distinguish how these Judgments do not govern the law relied upon by the learned Single Judge, while other judgments are cited to persuade this Court as to how and in what manner the law shall be interpreted.
13. Learned Advocate Mr. Marpakwar for the employer opposed the Letters Patent Appeals, inter alia, on various grounds:
(a) That the finding of the Single Judge that the employer- employee relationship is under dispute is unassailable.
(b) The Labour Court which is the authority under MRTU & PULP Act, which enjoys summary jurisdiction and which has a limited scope of exercise of powers does not have jurisdiction to entertain the complaints, and therefore, the complaints, which were wrongly entertained have been rightly dismissed by the learned Single Judge by allowing the Employer's Writ Petitions.
(c) Once the complaints under MRTU & PULP Act, were dismissed as not maintainable, only forum available was under the provisions of Industrial Dispute Act.
(d) It was not a case of denial of justice requiring interference in Letters Patent Appeals.
(e) That the Letters Patent Appeals are not maintainable.
14. Learned Advocate Mr. Marpakwar placed reliance on the following Judgments.
(1) , Shramik Uttarsh Sabha v. Raymond Woolen Mills Ltd and Ors.
Page 2040 (2) 1995 Supp (1) Supreme Court Cases 175, General Labour Union (Red Flag) Bombay v. Ahmedabad Mfg. & Calico Printing Co. Ltd. and Ors.
(3) 2001 III CLR 1025 Hindustan Coca Cola Bottling S/W Pvt. Ltd. v. Bhartiya Kamgar Sena and Ors.
(4) 2001 III CLR 728, Indian Seamless Metal Tubes Ltd. (Tubes Division, Ahmednagar v. Sunmil Rambhau Iwale and Ors.
(5) , Vividh Kamgar Sabha v. Kalyani Steels Ltd. and Anr.
(6) (2001) 3 Supreme Court Cases 101, CIPLA Ltd. v. Maharashtra General Kamgar Union and Ors.
(7) 2005 (4) Mh. L. J. Tukaram Tanaji Mandhare and anr. v. Raymond Woollen Mills Ltd. and Ors.
(8) , Sarva Shramik Sangh v. Indian Smelting & Refining Co. Ltd. and Ors.
(9) 2006 (2) Bom. LC 596 (Bom) Mahindra & Mahindra Ltd. v. General Employees' Union and Ors.
(10) 2006(1) ALL MR 494, National Textile Corporation (SM) Ltd. v. Devraj Chandrabali Pai.
(11) Janprabha Offset Works v. Sarva Shramik Sangh, Jalgaon and Anr.
ANALYSIS:
15. We have carefully considered the issues involved, and submissions made by the learned Advocates for the parties.
16. It is necessary to note that it was not the complainants' case that:
(a) they were in fact, employed by a Contractor, and that said arrangement was sham and bogus; or
(b) though they were employed through Contractor, they were in fact, rendering the job of regular nature and, therefore, by unveiling the camouflage of the contract labour, they were to be treated as direct employees; or
(c) they were claiming the abolition of contract labour and absorption in employment.
17. It is also seen that even it was not the employer's case that the complainants were contractor's 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 individual capacities.
Page 2041
18. 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 employee relationship.
19. The legal position as to contract labour and their absorption of the workmen in the employment of the Principal Employer can be summarised as follows:
(i) In Cipla Ltd., v. Maharashtra General Union and in Sarva Shramik Sangh v. Indian Smelting and Refining Company Ltd. , it has been held that the authority under MRTU & PULP Act does not have jurisdiction to decide as to whether the workmen are in fact, directly employed by the Principal Employer in the background of plea of agency of contract labour and the same is required to be adjudicated under the provisions of Industrial Disputes Act.
(ii) Similarly in Steel Authority of India Ltd., v. National Union of Waterfront Workers and Ors. it has been held that to abolish contract labour in any industry is the statutory function of appropriate Government.
20. 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 & Mahindra Ltd., v. General Employees' Union, and (2) 2007 (4) Mh. L. J., Janprabha Offset works v. 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 & PULP Act, was held impermissible. In the complaints filed by the workmen in the present cases such prayer is not made directly or indirectly.
21. 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 present cases.
Page 2042
22. 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 not belong.
23. In view of the above discussion, we hold that the complaints filed by the appellants before the Labour Court were maintainable.
24. In view of the fact that the learned Single Judge of this Court had allowed the Writ Petitions on the ground that the complaints were not maintainable, and no findings were given on merits, we seem it appropriate to remit the matters and accordingly, remit the matters to Learned Single Judge to dispose of on merits. All the appeals are allowed in aforesaid terms. Having regard to the facts and circumstances, the parties to bear their own costs.