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Sairam Natural Gas And Oil Corporation ... vs Maharashtra Employees Union on 13 June, 2018 cites

Cipla Ltd vs Maharashtra General Kamgar Union & Ors on 21 February, 2001

The Supreme Court in Cipla's case held that the Industrial Court had no jurisdiction under MRTU & PULP Act to consider whether or not the workmen, alleged to be contract workers, were infact direct workmen of the principal employer. To decide this it must be first held that the contract between the principal employer and contractor was a camouflage or sham contract. This involves repudiation of the contract with one (i.e. the ostensible employer) and establishment of a legal relationship with another (i.e. the true employer). Such exercise would not fall within the scope of either Section 28 or Section 7 of MRTU & PULP Act. The Court held that the proceedings under MRTU & PULP Act being summary in nature and giving drastic remedies to the parties concerned, elaborate consideration of any question as to the relationship of employer-employee between the parties cannot be gone into in such proceedings. The Court, however, kept one window upon. Wherever at any time the employee concerned was indisputably an employee of the establishment and subsequently it was disputed, such question, the Court held, would be an incidental question arising under Section 32 of the Act. If, on the other hand, the establishment had never recognized the workman concerned as its employee, the Court constituted under Section 28 of the Act would not have jurisdiction to entertain the complaint unless the relationship of employer-employee is first determined in proceedings under the Industrial Disputes Act. Mr. Shaikh places strong reliance on the permissibility of deciding the question of existence of a relationship as an incidental issue. Learned Counsel also relies in this behalf on the 1 2001 I CLR 754 ::: Uploaded on - 26/06/2018 ::: Downloaded on - 26/06/2018 23:20:58 ::: Chittewan 4/7 18.
Supreme Court of India Cites 16 - Cited by 110 - Full Document

Hindustan Coca Cola Bottling S/W Pvt. ... vs Bhartiya Kamgar Sena And Ors. on 12 October, 2001

WP 6309-17.doc judgment of a Division Bench of this Court in the case of Hindustan Coca Cola Bottling S/W Pvt. Ltd. Vs. Bhartiya Kamgar Sena.2 Learned Counsel submits that in a case, where it can be demonstrated before the Court that at one point of time there was a subsisting contract of employment between the employer and employee concerned and the relationship has come to be disputed only subsequently, such question is an incidental question arising under Section 32 of the Act. Learned Counsel submits that unlike in the case of Cipla Ltd or in the case of Hindustan Coca Cola Bottling, in the present case, the union had not come to the Court with a case that the employees, whose cause it was espousing, though shown to be contract labour, were infact direct employees of the principal employer and that the contract under which they were purportedly engaged was sham or bogus. Learned Counsel submits that the union went to the Court with a specific case that there was a relationship of employer and employee between the parties and that the dispute had been raised only by the petitioner-establishment and this incidental question could well be decided by the Industrial Court. I am afraid, that is not a correct reading of the judgment of the Supreme Court in case of Cipla Ltd or of our Court in the case of Hindustan Coca Cola Bottling. No doubt, in Cipla Ltd., the respondent union went to the Court under Section 28 of the Act alleging that the appellant company had been engaging workmen but on paper they were shown as 'contract workers' working for contractor; the contractor was a mere name-lender, and it was the appellant company who was the real employer of the workmen, whereas the appellant company contended that the concerned employees were not its employees but real, as opposed to mere ostensible, employees 2 2001 III CLR 1025 ::: Uploaded on - 26/06/2018 ::: Downloaded on - 26/06/2018 23:20:58 ::: Chittewan 5/7 18. WP 6309-17.doc of the contractor. But it is not that wherever the complainant employees go before the court alleging employer-employee relationship between them and the respondent employer and the relationship is disputed by the latter, the question of existence of such relationship becomes an incidental question. The whole point in issue is whether there is an undisputed or indisputable employer-employee relationship. If there is no undisputed or indisputable employer-employee relationship, the Court cannot assume jurisdiction to entertain the complaint after making an inquiry into the question of existence or otherwise of the relationship of employer and employee. If the Court is not satisfied that there is an undisputed or indisputable employer-employee relationship, there is no occasion to frame an issue on such relationship and allow the parties to lead evidence and then decide the point on such evidence. It is immaterial on whose pleadings such issue or dispute arises. It may arise purely on the pleadings of the employer opposing the complaint. The employees may assert the relationship and the employer may deny it. The Court has to look at the material placed before it and see if it is satisfied that there is in fact no dispute as to the relationship. This would be so if the dispute raised by the employer is merely nominal or for the sake of raising a dispute so as to oust the jurisdiction of the Court. If, on the other hand, it is not satisfied that it is so, and if it requires a trial to decide the issue, it must stay its hands and require the parties to have the status of their relationship determined first under the Industrial Disputes Act.
Bombay High Court Cites 22 - Cited by 39 - A P Shah - Full Document
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