JUDGMENT B.P. Dharmadhikari, J.
1. By this writ petition, employer Maharashtra Industrial Development Corporation has challenged the order dated 17-9-1999 passed by respondent No. 1 Member, Industrial Court in Revision U.L.P. 397/1994 whereby the Member Industrial Court reversed the judgment delivered by Labour Court in U.L.P. complaint 39-1991. The Labour Court, Chandrapur dismissed complaint under Section 28 read with schedule IV(1) of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (referred to as U.L.P. Act hereafter) preferred by present respondent No. 2 Anant (Anand?) challenging his termination from 20-12-1990 by petitioners while Industrial Court directed petitioners to reinstate him with continuity and backwages. This Court has stayed said order of Industrial Court.
2. Respondent No. 2 approached Labour Court on 18-2-1991 with grievance that he was employed by petitioners as Driver from 24-9-1988 and he worked upto 19-12-1990 regularly. On 20-12-1990 when he went to join duties, he was not permitted to work and he claimed that he was orally terminated. He challenged this termination as not in good faith but in colourable exercise of his powers by employer, as victimisation and with undue haste without following principles of natural justice. He asserted that he has worked for more than 240 working days continuously and uninterruptedly during one calendar year. The petitioner filed their reply and denied that respondent No. 2 was their employee and he worked under various contractors on ratelist basis. They contended that quotations for supply of Labour for one month used to be invited from various contractors and lowest quotation used to be accepted for one month. Such ratelist used to expire at the end of month and there was no relationship of employer and employee between parties. Completion of 240 days continuously by respondent No. 2 was also denied. They also contended that because of absence of relationship of any kind, it was not necessary to give one month notice or salary in lieu thereof to respondent No. 2. The parties lead evidence and Labour Court found that there was no appointment order or termination order and relationship itself was in dispute. It appreciated the oral evidence and the documents on record and found that respondent No. 2 was not successful in showing that he was directly engaged by petitioners. In view of this finding, it dismissed the complaint.
3. The Industrial Court has however reversed this finding of Labour Court observing that it did not properly consider the oral and documentary evidence in the light of material pleadings and hence, conclusion reached by Labour Court was wrong. It found that Labour Court directed petitioners to produce Outward and Inward Register but said order was not properly complied with and hence Labour Court should have drawn adverse inference. It has thereafter considered the Xerox documents produced by respondent No. 2 before Labour Court in detail and found that Labour Court was not justified in expecting respondent No. 2 to produce payment vouchers or attendance registers. It held that the Labour Court erred in rejecting genuine oral and documentary evidence produced by respondent No. 2. According to it even if respondent No. 2 was presumed to be in employment of contractor, still petitioner, being principal employer could not have avoided its responsibility. It therefore set aside his oral termination and directed petitioner to reinstate him with continuity and backwages.
4. I have heard Advocate M.M. Agnihotri for petitioner, Advocate J.L. Bhoot for respondent No. 2 employee and learned AGP for respondent No. 1.
5. Learned Counsel for petitioner Shri Agnihotri has contended that the learned Member of Industrial Court has exceeded jurisdiction on two counts. First according to him, the moment relationship was shown in dispute, the U.L.P. Complaint itself ought to have been held to be not maintainable and in support he invites attention to , Vividha Kamgar Sabha v. Kalyani Steels Pvt. Ltd. , Cipla Ltd. v. Maharashtra General Kamgar Union , Sarva Shramik Sangha v. Messers Indian Smelting and Refining Company Ltd. 2002 (1) Mh.LJ. 559 : 2001(3) CLR 1025. Hindustan Coca-Cola Bottling v. Bhartiya Kamgar Sena and 2004(4) Mh.L.J. 596 between Executive Engineer, Environmental Engineering v. Gokarnaprasad Dube. It is his argument that even if such denial is only to frustrate the grievance before Labour Court, still no inquiry into its genuineness is permitted and he relies upon 2002(5) Mh.LJ. 192, Indian Seamless Metal Tubes Ltd. v. Sunil Rambhau Iwale 1994 (1) Mh.LJ. 1004, Municipal Corporation of Amraoti v. Ashok Ramkrishna Kamble is pressed into service to urge that Objection in this respect is to very jurisdiction of Labour Court and hence it can be raised at any time. He argues that denial of relationship is already pleaded before Labour Court and whether that Court can investigate into facts to find out absence or existence of such relationship is pure question of law which can be gone into by this Court. He further states that scope of Revisional jurisdiction under Section 44 of U.L.P. Act is limited and Industrial Court could not have reappreciated entire evidence afresh and by undertaking such exercise, it exceeded said scope. In support he relies upon 1983 (46) F.L.R. 244, Mahila Griha Udyog v. Kamgar Congress 1986 (I) CLR. 77, Hindustani Prachar Sabha v. Dr. (Miss) Rama Sen Gupta, 1993 Mh.LJ. 1617, Pest Control (I) Pvt. Limited v. Pest Control Employees Union and 1995(1) C.L.R. 854, Vithal Gatlu Marathe v. Maharashtra State Road Transport Corporation. He further states that bare perusal of complaint itself was sufficient to create doubt about existence of Employer - Employee relationship and Industrial Court has looked into the evidence which was not admissible as there were no pleadings. According to him, as relationship was denied, pleadings assume importance and oral evidence about appointment by any officer or termination by such office of petitioner, about monthly wages should not have been accepted. To emphasise importance of pleadings in Labour jurisprudence he cites between Shankar Chakravarti v. Britannia Biscuit Company Ltd. and argues that in present facts, the ruling will apply with more vigour. He further states that documents which were held as not proved by Labour Court have been accepted and acted upon by Industrial Court. He points out as to how these documents have been approached by Industrial Court from totally different perspective. In the alternative, he states that these documents also support that respondent No. 2 was employed on contract basis and hence his U.L.P. Complaint was not maintainable. His next argument is that the employment with petitioner is public employment regulated by Articles 14 and 16 of Constitution of India and nobody can claim right to hold post with it if he has not joined the Service. He argues that employee in order to prove his entitlement to relief of reinstatement has to establish that he entered the Service through any recognised mode like open selection process through public advertisement, forwarding of names by Employment Exchange and interview etc. in which all aspirants can participate. As respondent No. 2 does not have appointment order, he himself states that he was orally told to appear for interview at Mumbai and the fact that he was working through contractor, all according to Advocate Agnihotri reveal that he did not join the Service and as such was not entitled to claim reinstatement. Industrial Court has overlooked these aspects and hence there is failure to exercise jurisdiction. He points out rulings reported at , A. Umrani v. Registrar, Co-operative Societies and , Dhampur Sugar Mills v. Bhola Singh in support. It is further argued that respondent No. 2 was unable to disclose names of alleged juniors retained in Service after his termination and no such junior was made party in U.L.P. Complaint. According to Learned Counsel, even seniority list (alleged) produced by respondent No. 2 disclosed that there were several juniors above him. The alleged representation at Exhibit 28 was not forwarded to employer but it was addressed to Hon'ble Minister and in any case no adverse inference can be drawn against employer for not sending reply to it. He further argues that burden to prove continuous service for 240 days was upon respondent No. 2 and he has failed to discharge it. In this respect attention is invited to 2004 (1) SCC 246, M.P. Electricity Board v. Hariram , Mahendra L. Jain v. lndore Development Authority and 2005 (2) Mh.L.J.543, Deputy Conservative of Forest v. Santosh Suryabhan and between Range Forest Officer v. S.T. Hadimani. He has also commented upon various documents considered by Industrial Court in an attempt to demonstrate how those documents could not have been relied upon and in any case did not further the case of respondent No. 2.
6. Advocate Shri Bhoot for respondent No. 2 raised objection about the contention that Labour Court did not possess jurisdiction to record any finding about disputed Employer-Employee relationship urging that no such objection was taken before Labour Court or even while defending revision before Industrial Court by petitioners. He states that such question cannot be allowed to be raised for the first time in writ petition. He invites attention to judgment of this Court reported at 2003 (4) Mh.LJ. 619, Nagraj Gowda v. Tata Hydro Electric Power Supply Company Ltd. to show that complaint as filed has to disclose relationship. He also places reliance upon 2004(3) Mh.L.J. 142 between Akhil Bhartiya Shramik Kamgar Union v. Buildtech Constructions and 2005(2) Mh.L.J. 652 : 2005 (2) Bombay Labour Cases 6 between Maharashtra Engineering Plastic and General Kamgar Union v. Little Kids and Ors. in this respect. He contends that Labour Court committed error in ignoring the non-production of material documents by petitioners and in not drawing adverse inference against them. The Xerox of originals produced by respondent No. 2 have been erroneously treated as not proved by it and Industrial Court corrected that mistake. He points out how Industrial Court has considered all the documents and he states that respondent No. 2 established that he was direct employee with petitioners and not through any contractor. He states that documents also disclose that respondent No. 2 rendered continuous service of more than 240 days. He states that in any case Labour Court possessed limited jurisdiction to find out whether there was any substance in plea of denial of relationship by petitioners and in order to find out this aspect, the Labour Court in original jurisdiction and the Industrial Court in the revisional jurisdiction could have scrutinised material on record and could have arrived at a finding in favour of respondent No. 2. According to him therefore there is no jurisdictional error warranting any interference at the hands of this Court. He also invites attention to certain admissions given by witness of petitioners about the relationship and points out that certificate given to respondent No. 2 clinched the issue. He also cites judgment of Hon'ble Apex Court reported at 2005 (III) CLR 1028, R.M. Yellatti v. The Assistant Executive Engineer and 2001 (88) F.L.R. 508, Deep Chandra v. State of U.P. to point out that reinstatement ordered in favour of respondent No. 2 is justified. By pointing out judgment of Allahabad High Court reported at 1998 (81) F.L.R. 319 between State of U.P. v. Labour Court, Haldwani and the judgment of Hon Apex Court reported at 2001(88) F.LR. 508 (supra) reversing it, he submits that concept of by backdoor recruitment or public employment is irrelevant while considering violation of Section 25F of Industrial Disputes Act. He further states that only principles under Evidence Act and not Evidence Act applies to proceedings before Labour Court and invites attention to ruling reported at 1994(69) F.LR. 1051 between Management of State Bank of India v. V.M. Mahapurush to support adverse inference drawn by Industrial Court. He also argues that author need not be examined in such proceedings to prove/exhibit the document and relies upon 2002 (2) LLJ 66, Thilagam G. and Ors. v. Presiding Officer, Labour Court, Salem and 2003 (III) LU 674 (Bom.), Brihanmumbai Mahanagar Palika v. Gangaram Muthyanna Mukadam in support. He contends that jurisdiction under Section 44 has been rightly exercised by Industrial Court as Labour Court had refused to exercise jurisdiction. He therefore asserts that no case is made out for interference in the jurisdiction.
7. It is clear that the basic question involved herein is about the existence of jurisdiction in Labour Court to inquire into or to investigate in to the complaint of unfair labour practice filed by present respondent No. 2. Learned counsel for respondent No. 2 Shri Bhoot, Advocate has raised objection that the issue regarding scope of jurisdiction of Labour Court to inquire into disputed relationship is being raised for the first time in writ petition and this Court should not entertain it. If this objection of Adv. Bhoot is overruled and also objection raised by Adv. Agnihotri is rejected, then only other issues on merit become available for consideration. If it is held that Labour Court possessed such jurisdiction, then the other questions raised by petitioners will be required to be gone into. If it is found that Labour Court did not possess jurisdiction, the other questions are rendered superfluous in present petition. These questions are :- (a) whether finding of Labour Court that respondent No. 2 could not prove employer employee relationship could have been interfered by Industrial Court? (b) whether finding of Industrial Court about existence of such relationship is correct or not? (c) whether the respondent No. 2 established that he completed 240 days of continuous service in preceding 12 months prior to his termination? (d) whether respondent No. 2 could have been given relief of reinstatement in public employment? All other arguments revolve around these questions and answers. If this Court finds fault in exercise of jurisdiction by Labour Court itself, respondent No. 2 in that event will be required to raise a substantive dispute under provisions of Industrial Disputes Act and the questions stated above with other allied issues will be required to be answered in those proceedings by competent forum to whom the reference is made. Any answer to these questions or issues now by this Court, in that event, will prejudice the party against whom such answers are given. Hence, first objection of respondent No. 2 about the tenability of preliminary objection raised by petitioner must be looked into.
8. Petitioner by placing reliance upon various judgments of Hon Apex Court as also of this High Court argued that though Labour Court has held that respondent No. 2 failed to prove that he was employee of petitioner, still Labour Court could not have done so because of limitations upon its jurisdiction in this respect. It is their contention that moment it is shown that employer-employee relationship is denied and is in dispute, the Labour Court has to reject U.L.P. complaint and respondent No. 2 has to raise substantive dispute before regular forum under Industrial Disputes Act. Respondent No. 2 states that such bar of jurisdiction was never pressed into service either before Labour Court at earliest possible opportunity or before Industrial Court and hence, it cannot be raised for the first time during arguments in present writ petition. Petitioner contends that bar goes to the very root of matter and if upheld, complaint filed by respondent No. 2 itself becomes unmaintainable and therefore such an issue can always be raised at any stage. It is contended that necessary facts are already on record and it is only question of application of principles of law to those facts and 1994 (1) Mh.L.J. 1004 between Municipal Corporation of Amraoti v. Ashok Ramkrishna Kamble is cited in support. In this case employer Municipal Corporation challenged interim order passed by Labour Court on the ground that complainants before Labour Court were not "employees" as defined in Section 3(13) of Bombay Industrial Relations Act. The employees were graduate engineers employed on daily wages and they filed complaint under Section 28 of U.L.P. Act before Labour Court Amraoti challenging their termination and sought interim relief. For the first time before High Court grievance was made that engineers were not "employees". No such objection was raised at initial stage before Labour Court and in paragraph 11 of report, this Court considered it as under:
11. Mrs. Jog, learned Counsel for respondents herein, however, pointed out that there was no examination by the Labour Court regarding duties of these persons. She pointed out that it was not that objection to the jurisdiction was not taken at the initial stage and, therefore, it would not be possible for the Corporation now to object to the jurisdiction of the Labour Court. The areument is obviously not plausible. The objection to the jurisdiction can be raised at any level. If the Court has no jurisdiction it can be pointed out at any stage of the litigation. That objection, therefore cannot be sustained. She, however, further.
This proposition in law has not been disputed and shown to be incorrect by respondent No. 2 at all. Thus, the petitioner is permitted to raise this objection about the absence of jurisdiction in Labour Court. In order to understand the scope of said jurisdiction, it would be appropriate to refer to recent judgments of this Court only because the entire law has been considered therein. The said judgment is that of Full Bench of this Court between Tukaram Mandhare v. Raymond Woollen Mills Ltd. reported at 2005 (4) Mh.LJ. 1045. Perusal of said judgment reveals that reference to Full Bench was necessitated in view of definition of "employee" in Section 3(13) of Bombay Industrial Relations Act. Question answered by Full Bench is whether complaint filed under U.L.P. Act by an employee as defined under Section 3(13) of Bombay Industrial Relations Act is maintainable although no direct relationship as employer-employee exists between him and principal employer if he is employed by contractor who undertakes whole or any part of the work which is ordinarily the work of undertaking of such principal employer. The question arose in view of definition of phrase "employee" and "employer" in the BIR Act because employees working under contractor are also covered by said definitions. The relevant observations in paragraphs 14 and 15 are sufficient for present purposes. These paragraphs read:
14. Therefore both the provisions of the B.I.R. Act and MRTU and PULP. Act complement each other in respect of industries to which the B.I.R. Act has been made applicable in relation to the definition of employee contained in the B.I.R. Act which has been incorporated in the MRTU and P.U.L.P. Act in respect of employees engaged in an industry governed by the provisions of the B.I.R. Act. The term "employee" has been given an extended meaning by the B.I.R. Act.' An employee is not only a person who is employed by the employer or over whom the employer has control, but also certain type of persons having been constituted, if one might put it so, statutory employees under the Act. It is not that every person employed by contractor becomes an employee of the master, but only those persons were employed by the contractor to do work for him in the execution of contract with an employer, which is mentioned in Sub-clause (e) of Clause (14) which defines "employer" and it is inclusive definition. If these two conditions are satisfied then any person employed by contractor becomes employee of the owner of the undertaking and the complaint by such an employee under Section 28 of the MRTU and P.U.L.P. Act would be maintainable in law. However, if the complaint fails to disclose the jurisdictional fact that the "work being ordinarily part of the undertaking" in relation to the work which was entrusted to the workmen of the contractor, the workmen must first get established the employer-employee relationship by adopting appropriate proceedings before the appropriate forum under the B.I.R. Act and it is only after status of the workmen or employee is established in appropriate forum that the complaint would lie under the provisions of the MRTU and P.U.L.P. Act.
15. It is pertinent to note that the judgments of the Supreme Court in Kalyani Steel Ltd., Cipla Ltd. and Sarva Shramik Sangh are in respect of industries governed by the Industrial Disputes Act which does not contain an extended definition of employee as contained in Section 3(13) of the B.I.R. Act. The Supreme Court has held that provisions of the MRTU and P.U.L.P. Act can only be enforced by persons who admittedly are workmen. If there is any dispute as to whether the employees are employees of the company then that dispute must be got resolved by raising the dispute before the appropriate forum. It is only after the status as workmen or employee is established in appropriate forum that the complaint could be made under the provisions of the MRTU and P.U.L.P. Act. In other words the existence of relationship is condition precedent for filing a complaint under the MRTU and P.U.L.P. Act. A person who does not answer the description of an employee has no locus standi to file the complaint. The common thread passing through all these judgments is that in order to entertain the complaint under the MRTU and P.U.L.P. Act it has to be established that complainant was an employee of the employer against whom the complaint is made. When there is no dispute about the relationship the provisions of MRTU and P.U.L.P. Act would have full application. However, if the basic claim is disputed then the issue has to be adjudicated by the forum which is competent to adjudicate. Now so far as industries governed by the B.I.R. Act are concerned contractor's employees engaged for execution of the whole or part of the work of the undertaking are regarded as employees by the statute and, therefore the question of establishing the status of such employees does not arise and the complaint filed by such employee will be clearly maintainable.
In the facts of present writ petition, respondent No. 2 has not contended that provisions of B.I.R. Act are applicable to the establishment of petitioner. It is only Industrial Disputes Act which governs it and admittedly definition of "workman" in Section 2(s) thereof does not include contract Labour within its sweep. Thus, moment status of respondent No. 2 as its workman was disputed by present petitioner, the Labour Court could not have entertained the matter for its trial on merit. It cannot be forgotten that the judgments of the Supreme Court in Kalyani Steel Ltd., Cipla Ltd. and Sarva Shramik Sangh (supra) are all in respect of industries governed by the Industrial Disputes Act and hence will apply squarely here. The bar operates at threshold and complaint under U.L.P. Act itself is not tenable. Respondent No. 2 has to obtain declaration and adjudication office status as workman from competent forum under the Industrial Disputes Act. If he is found to be workman of present petitioner then alone he can file U.L.P. complaint.
9. However, learned Counsel for respondent No. 2 has stated that mere denial in written statement by petitioner employer is not sufficient to prohibit Labour Court from taking cognizance of his complaint and respondent No. 2 can and has demonstrated that employer-employee relationship in his case is "indisputable". He relies upon the judgment of this Court to support his contention. 2004 (3) Mh.L.J. 142 between Akhil Bhartiya Shramik Kamgar Union v. Buildtech Constructions and 2005 (2) Bombay Labour Cases 6 between Maharashtra Engineering Plastic and General Kamgar Union v. Little Kids and Ors. (supra).
A. I find it appropriate to consider this issue by making reference to Division Bench judgment of this Court reported at 2007 (III) CLR 1025 between Hindustan Coca Cola Bottling v. Bhartiya Kamgar Sena (supra). This was an appeal against the judgment of Learned Single Judge in which learned Single Judge held that complaints filed under U.L.P. Act are not of summary nature and Industrial Court has power and jurisdiction to decide employer-employee relationship. The learned Single Judge therefore directed the Industrial Court to frame an issue in this respect and to decide the same on merits on the basis of evidence and material produced by parties. The prayer made by employees before Industrial Court was to declare that respondent No. 3 was a sham contractor and they were direct employees of petitioner-company i.e. Hindustan Coca-Cola. The observations in paragraphs 16 and 17 of the Division Bench judgment are important. In paragraph 16, judgment of other learned Single Judge of this Court in case between Indian Seamless Metal Tubes v. Sunil Iwale has been considered because it has been held there that in view of the judgments of Hon Apex Court whenever existence of employer employee relationship between the parties to U.L.P. complaint is not already established or is disputable, the party has to first seek relief under either Industrial Disputes Act or B.I.R. Act. The Division Bench observes "We are in agreement with the observations of the learned Single Judge but with the rider that in cases where the employer employee relationship was recognised at some stage and thereafter it was disputed, the Industrial Court has jurisdiction to decide this issue as an incidental issue under Section 32 of the MRTU and P.U.L.P. Act". Division Bench in paragraph 17 makes reference to still another judgment in case between Raigad Mazdoor Sangha v. Vikram Bapat 2001(II) CLR 553 in which learned Single Judge held that while deciding question of maintainability of such complaint, Industrial Court is bound to frame an issue as preliminary issue on that count and after framing the preliminary issue decide the point of jurisdiction. Division Bench notices the view to the contrary taken by learned Single Judge in case between Indian Seamless Metal Tubes v. Sunil Iwale (supra) and in fact has reproduced paragraph 20 of the judgment in case between Indian Seamless Metal Tubes v. Sunil Iwale. Relevant portion from paragraph 20 reads:
Indeed, the question of framing of issue or holding of summary inquiry does not arise at all. Once, it is clear that Industrial Court under the said Act has no jurisdiction to decide the issue relating to employer-employee relationship, the occasion for framing of issue on the point which is beyond its jurisdiction cannot arise. Once it is clear that the jurisdiction of the Industrial Court depends upon the fact of existence of employer employee relationship between the parties which is a jurisdictional fact, which should exist to enable the Industrial Court to assume jurisdiction to entertain the complaint under the said Act, in the absence of the same, any attempt on the part of Industrial Court to adjudicate upon the issue of such relationship would amount to mistake of fact in relation to jurisdiction.
After reproducing entire paragraph 20, Division Bench at end of paragraph 17 of its judgment observes :- "We are in respectful agreement with the above view expressed by Khandeparkar, J. If, on the bare reading of the complaint, the Industrial Court or the Labour Court as the case may be, is satisfied that it has no jurisdiction to decide the complaint as there is no undisputed or indisputable employer-employee relationship, the occasion for framing an issue on that count would not arise. If the Industrial Court or the Labour Court is satisfied that there is no undisputed or indisputable employer-employee relationship, it cannot assume jurisdiction to entertain the complaint and the complaint will have to be dismissed as not maintainable". Division Bench therefore allowed the appeal and quashed and set aside the view of learned Single Judge impugned before it.
B. Another Division Bench judgment of this Court on the point is Quadricon Pvt. Ltd. v. Maxi D'Souza and Ors. reported at 2004 LIC 3789. The employees of appellant before Division Bench filed complaint before Industrial Court claiming facilities and privileges of permanent employees and they also sought interim relief to protect their services. The appellant-employer filed reply and denied relationship of employer and employee. Industrial Court after hearing parties and on the basis of available material, particularly identity cards granted interim relief to employees. Appellants filed Writ Petition which came to be dismissed by learned Single Judge. After making reference to the judgment of Hon Apex Court in case between Cipla Ltd (supra), the Division Bench has quoted paragraphs 7 to 10 thereof and observed in paragraph 11 and 12 that:
11. Conversely when the relationship of employer-employee is disputed or is questionable, the Court constituted under the MRTU and PULP Act has no jurisdiction to entertain the complaint unless the status of relationship of employer and employee is first determined in the proceedings under the B.I.R. Act, 1946 or the Industrial Disputes Act. Logically, therefore, in the complaint filed under the MRTU and PULP Act, the Court constituted thereunder is not competent to adjudicate the relationship of employer-employee.
12. In the case in hand the relationship of employer-employee has been called in question by the first appellant. The thing then remained to be seen by the Industrial Court was to find out whether the relationship of employer-employee is questionable. What is significant to be noticed is that the date on which the interim order came to be passed, the Industrial Court also passed an order directing the first appellant to produce muster role and wage register from 1990 till March, 2004 of its employees and also produce the leave records maintained by the first appellant for the period 1990 and till March, 2004 of its employees. That suggests that Industrial Court was not sure whether relationship of employer-employee was capable of being questioned by first appellant. The Industrial Court constituted under the MRTU and PULP Act is not clothed with the Jurisdiction to adjudicate the employer-employee relationship nor there is anything like prima facie consideration of relationship of employer-employee in the complaint under the said Act. In our considered view since the jurisdiction of the Industrial Court in passing the interim order under Section 30(2) is founded upon the consideration of the aspect whether the complaint under Section 28 is entertainable and that depends on relationship of employer-employee, in the case like this were such relationship is called in the question, the Industrial Court was required to consider the aspects as to whether the employer-employee relationship is unquestionable on the basis of the pleadings of the parties and the available material and then proceed with consideration of prayer for interim relief if it was of the view that employer-employee relationship was unquestionable and not in the manner he did prima facie overruled the objection of the first appellant, granted interim relief and then decided to hold the inquiry into relationship of employer employee by calling for records from first appellant. This aspect has been overlooked by the learned Single Judge.
C. Learned Single Judge of this Court deciding the matter between Indian Seamless Metal Tubes v. Sunil Iwale (supra) has again considered same controversy after noticing the Division Bench judgment reported at 2002(1) Mh.L.J. 559 : 2001 (III) CLR 1025 i.e. Hindustan Coca Cola Bottling v. Bhartiya Kamgar Sena, (supra). Paragraph 5 of this latter judgment between Nagraj Gowda v. Pathak Hydro Electric Power Supply Company Ltd reported at 2003 (4) Mh.L.J. 619 : 2003 (III) CLR 358 observes :- 5. The issue as to the jurisdiction of the Industrial Court or the Labour Court to entertain the complaint under the said Act has been conclusively decided by the abovereferred decisions irrespective of the fact whether the employer-employee relationship arises either in terms of the provisions of the Industrial Disputes Act, 1947 or the B.I.R. Act. What is necessary to give jurisdiction to the Labour Court or the Industrial Court to entertain the complaint under the said Act is the existence of such employer employee relationship, to be disclosed from the contents of the complaint filed by the complainant. Undoubtedly, the contents must be corroborated by necessary materials on record, more particularly when there is scope to dispute the claim of existence of such relationship. Once the complaint fails to disclose the necessary jurisdictional fact i.e., the existence of the employer-employee relationship between the parties, the question of the Labour Court or the Industrial Court going into the issue as regards such relationship does not arise. It is immaterial whether the relationship of employer-employee is claimed in accordance with the provisions of the Industrial Disputes Act or pursuant to the provisions of the B.I.R. Act. What is essential is that the complaint itself should disclose all the facts which can reveal the existence of such a relationship between the parties".
D. Another judgment in this respect is between Maharashtra Engineering Plastic and General Kamgar Union v. Messers Little Kids and Ors. reported at 2005 (2) Bom.L.C. 6 : 2005 (I) CLR 658. This is by the learned Single Judge who decided Raigad Mazdoor Sangha v. Vikram Bapat 2001(II) CLR 553 (supra). After noticing the Division Bench judgment at 2001(III) CLR 1025 between Hindustan Coca Cola Bottling v. Bhartiya Kamgar Sena (supra), at the end of paragraph 6 it is observed:
From the above it will therefore, be clear that there must be at the time of entertaining the complaint, where relationship is disputed, strong material in the form of at least documentary evidence to show existence of relationship of employer and workman. If such relationship does not exist or is disputed, it will not be open to the Court under the MRTU and PULP Act to examine the matter. In a case where the employee claims that though he is employed by the contractor, the contract is sham, then the complaint would not be maintainable. In cases other than contract workers where the employee disputes the relationship, there must be strong prima facie evidence available before the Court to entertain the complaint in order to determine the issue as to existence of relationship. If there is no documentary prima facie material, then it will not be open to the Labour Court to decide the issue.
In paragraph 7 it was found that the union approached Labour Court contending that respondent No. 1 is partnership of which respondent No 2 and 3 are partners. No prima facie material was produced to that effect. It was further contended that respondent-company had a sister concern by name Messers Teenage Fashions situated on same plot and premises managed by common management. After reply of management, union filed rejoinder and it pointed out yet another sister concern by name Messers Dinesh Fashions and it was contended that the workmen had to work for both i.e. for respondent No. 1 as also for Messers Dinesh Fashions. Respondent No. 1 admitted employment of only 2 employees whose names figured in ESIC list and this Court has held that it would not determine existence of relationship qua other workmen. It was further held that examination of such employee or his evidence that others were working with him could not make any difference because he was not available for cross-examination by the employer respondent No. 1. Contention of union that objection about jurisdiction was raised after evidence had commenced was overruled holding that such objection about maintainability can be raised not only at initial stage but even in the course of proceedings. The petition was dismissed finding no merit in the case of petitioner union.
E. In Lokmat News Papers Ltd. v. Prabhakar Rambhauji Chaudhari, reported at 2003(1) Mh.L.J. 485 : 2003(1) CLR 550, learned Single Judge of this Court observed:
18. In my opinion, this contention of Mr. Thakur cannot be accepted. The parameter to ascertain as to whether the Court-Tribunal has jurisdiction will depend on the factual situation enumerated in the pleadings and commonly known as iurisdictional facts. If the superior Court is not satisfied that the essential elements of having factual jurisdiction are all present, the subordinate Court can be said to have acted without jurisdiction. In the present case, the complainants have putforth their claims on the foundation that they have been employed by the respondent in their establishment on daily wages and though they have rendered continuous service of 240 days in 12 calendar months, they were entitled to be regularised and for all the consequential benefits arising out of it and as the respondent-Company has failed to consider their case for regularisation, it amounts and constitutes unfair labour practice under Item No. 9 of Schedule IV of MRTU and PULP Act 1971. On the other hand, it is the respondent's case that there are no employer-employees relationship between the parties. They have specifically denied that the complainants were employed by them on their establishment. On the other hand, their stand is that the complainants are employed as domestic servants by their officers. The fact that the respondent-company has agitated before the Industrial Court that the complainants were not employees of the respondent-company, but were engaged by their officers as domestic servants, itself goes to show that this is not a case where the respondent-company has taken up the plea only for the purpose of denial which can be said to be formal denial only to defeat the claim of the employees, or for that reason, initially if having not disputed such relationship and changed their stand so, the issue merely become incidental in deciding the controversy.
This Court therefore quashed and set aside impugned orders passed by Industrial Court and dismissed all complaints filed by employees.
F. Now one more judgment of learned Single Judge 2004 (3) Maharashtra version 142 : 2004(3) Mh.L.J. 142 between Akhil Bhartiya Shramik Kamgar Union v. Buildtech Constructions (supra) needs to be looked into. The union filed complaint before Industrial Court and sought relief that workmen listed in exhibit A should be shown by respondent on their muster rolls from their respective dates of appointment, ESI and PF facility, bonus, leave facility etc. should be extended to them. The stand of respondent-employer in this matter was that the persons claiming to be its employees were not employees but self employed persons and therefore contractors. Industrial Court held that because of contentious issue of employee-employer relationship, it had no jurisdiction to try and decide the complaint and it relied upon judgment of this Court Lokmat News Papers Ltd. v. Prabhakar Rambhauji Chaudhari, reported at 2003(1) Mh.L.J. 485 : 2003(1) CLR 550 (supra). The question considered by this Court is whether mere denial of relationship in reply affidavit by employer can oust the jurisdiction of Court to try and decide U.L.P. complaint. The petitioner union before High Court stated that it had moved formal application before Industrial Court calling upon employer to produce muster cum wage register, cash register, bonus register, leave register, audited balance sheet etc. It was their-employees contention that the denial by employer was mala fide and only with view to oust the jurisdiction. The Industrial Court could have examined the limited aspect of the matter i.e. whether stand taken by respondent was false, frivolous, vexatious only to create a smoke screen and thereafter only it could have answered the issue jurisdictional fact. The employer relied upon above-mentioned judgments of Hon. Apex Court, judgments of this Court to support the order of Industrial Court. The application of mind by this Court is evident in paragraph 9 and relevant portion thereof reads:
9. Indubitably, it is well established that the complaint filed under the Act can proceed only if the relationship of employer-employee is undisputed or indisputable. However, the principal question that arises for my consideration is : whether it is enough for the respondents to merely deny on affidavit in reply or in written statement, the relationship of employer-employee, so as to oust the jurisdiction of the Court to proceed with the complaint as filed. In my opinion mere statement of denial of relationship made in the reply affidavit or for that matter written statement, by itself cannot be the basis for taking the view that the Court has no jurisdiction. In the first place, issue of jurisdiction of the Court is to be determined from the averments in the Plaint and not on the basis of defences raised in written statement. Even if the Court were to look into the defence of the opposite side, mere denial of relationship of employer-employee between the parties, by itself, is not enough. For, the opposite side is obliged to give or supply particulars to enable the Court to take the view that the defence so taken is neither false, frivolous, vexatious and vague. That is so because whether the stand taken by opposite side is bona fide or not, is a matter which nevertheless, can and ought to be inquired into by the Court before which such as stand is taken. That issue is obviously a jurisdictional fact, to be inquired into by that Court. In that event, the Court was to take the view that the stand taken in the reply affidavit or the written statement regarding the relationship between the parties, is mala fide, then obviously, such a stand will have to be discarded and the Court can proceed to decide the complaint on merits, on the assumption that the relationship between the parties of employer-employee, does exist or is indisputable." This Court has thereafter observed that in none of the decisions relied upon before it by respondents this Court laid down that mere denial of relationship in written statement is inviolable and the Court would therefore hold that contentious issue arises. This Court found that it would result in driving the employee to protracted litigation, to first establish the relationship, which otherwise is undisputed or indisputable from the available record as existing between the parties. Thereafter this Court has made reference to jurisdictional fact to be decided about status as "workman" in Section 33-C (2) proceedings and also to cases laying down that Civil Court has to ascertain whether the plea of tenancy taken in written statement is false or otherwise before making reference to tenancy authorities. Thereafter reference is made to one more judgment of this Court by learned Single Judge in case of Hindustan Spinning and Weaving Malls Ltd. v. Sharad G. Khanolkar 2002 (3) Mh.L.J. 794 : 2002 (I) CLR 999 in which it is observed that if stand regarding relationship of employer employee is taken in reply, employee can demonstrate that relationship was never disputed earlier or that it is indisputable by referring to pleadings before Industrial Court. It has been held that pleadings would include annexures to the complaint and written statement. It has been held that the Court has to make limited inquiry to find out whether stand as taken, is bona fide and legitimately available to the employer. It is held that that would not mean that the Court has to adjudicate upon the issue of existence of relationship of employer-employee as such. Rulings of Hon. Apex Court in relation to obligation cast upon Court with limited jurisdiction to find out whether matter comes within its limited jurisdiction are thereafter considered and then the conclusions are mentioned in paragraph 12. Said paragraph reads:
12. On the principles expounded by the Apex Court referred to above, I find no difficulty in accepting the submission canvassed on behalf of the petitioners that mere statement of denial of relationship made in the written statement or reply affidavit by the employer, by itself will not be sufficient to hold that contentious issue has been raised. In the present case, it is not in dispute that the petitioners had filed application before the lower Court, praying that the respondents be directed to produce certain documents. The fact as to whether the stand taken by respondents in the reply affidavit relating to relationship of the parties is genuine or mala fide, could very well be ascertained from the said documents maintained by the respondents, if the same were to be produced before the Court below. However, it is not in dispute that the said application has remained undecided before the Industrial Court, which obviously is inappropriate. To find out the bona fide of the stand taken by the respondents, not only production of said documents referred to in said application was imperative; and if the respondents were to contend that no such documents are available, it will be open to insist upon examination of witness or cross-examine the affiant, who has stated on affidavit about the relationship between the parties, so as to confront him with the record produced before the Court or in relation to the stand of unavailability of the record so as to find out the bona fide of the stand so taken in reply affidavit filed on behalf of the respondents. On the basis of such evidence, if the Court was to find that stand is not bona fide, then obviously, such as stand will have to be discarded, and that adjudication would be one of jurisdictional fact, which is required to be answered at that stage of the proceedings.
Thereafter the facts of said writ petition have been considered and in relation to stand of respondents that petitioners were self-employed persons, it is observed that such plea will be required to be supported by production of documents as mentioned in the application and sought for by petitioners.
G. Here it will be appropriate to note one more important judgment of Hon. Apex Court. In i.e. Sarva Shramik Sangha v. M/s Indian Smelting and Refining Co. Ltd., while turning down request for referring the issue to Larger Bench, the Hon. Apex Court has observed:
21. The common thread passing through all these judgments is that the threshold question to be decided is whether the industrial dispute could be raised for abolition of the contract labour system in view of the provisions of the Maharashtra Act. What happens to an employee engaged by the contractor if the contract made is abolished is not really involved in the dispute. There can be no quarrel with the proposition ax contended by the appellants that the jurisdiction to decide a matter would essentially depend upon pleadings in the plaint. But in a case like the present one, where the fundamental fact decides the jurisdiction to entertain the complaint itself the position would be slightly different. In order to entertain a complaint under the Maharashtra Act it has to be. established that the claimant was an employee of the employer against whom complaint is made, under the I.D. Act. When there is no dispute about such relationship, as noted in paragraph 9 of CIPLA 's case (supra) the Maharashtra Act would have full application. When that basic claim is disputed obviously the issue has to be adjudicated by the forum which is competent to adjudicate. The sine qua non for application of the concept of unfair labour practice is the existence of a direct relationship of employer and employee. Until that basic question is decided the forum recedes to the background in the sense that first that question has to be got separately adjudicated. Even if it is accepted for the sake of arguments that two forums are available, the Court certainly can say which is the more appropriately forum to effectively get it adjudicated and that is what has been precisely said in the three decisions. Once the existence of contractor is accepted, it leads to an inevitable conclusion that a relationship exists between the contractor and the complainant. According to them, the contract was a facade and sham one which has no real effectiveness. As rightly observed in CIPLA's case (supra), it is the relationship existing by contractual arrangement which is sought to be abandoned and negated and in its place the complainant's claim is to the effect that there was in reality a relationship between the employer and the complainant directly. It is the establishment of the existence of such an arrangement which decides the jurisdiction. That being the position, CIPLA 's case (supra) rightly held that an industrial dispute has to be raised before the Tribunal under the I.D. Act to have the issue relating to actual nature of employment sort out. That being the position, we find that there is no scope for reconsidering CIPLA's case (supra), the view which really echoed the one taken about almost a decade back.
10. Both the above Division Bench rulings therefore hold that the Labour or Industrial Court functioning under the U.L.P. Act has to first find out whether the relationship which is being denied by employer is indisputable or unquestionable on account of its past acceptance by the employer and such past acceptance is to be found out on the basis of pleadings of parties and the available material. If it has any doubt about existence of such relationship, inquiry to clear it is not possible and the employee/complainant will be required to approach regular forum under either B.I.R. Act or ID Act. The judgments of Hon. Apex Court in this respect use two words i.e. "undisputed" or "indisputable". No problem arises when the relationship is undisputed. However, when employer denies and disputes the relationship which is beyond dispute, the question whether it is indisputable will arise. The complaint as filed may disclose necessary facts to show existence of such relationship and those facts may be corroborated by certain documents filed either with the complaint or later on. The employer even in this position can come up with plea of denial of relationship in his written statement. In fact, contingency of this nature will not arise till employer takes a stand in his reply or written statement. In that event apart from pleadings of parties, material produced may also be required to be gone into. If complainant/employee has such material with him, he will definitely produce it for consideration. However, if he does not possess such material and the same is available with his employer, he can requisition it to show that relationship exists and is being denied malafidely. Labour or Industrial Court will not be acting without jurisdiction in summoning documents like registers in which attendance of such employee is marked or vouchers through which payment has been made to him or production record containing his name. The Division Bench judgments do not prohibit such inquiry only to find out previous acceptance of such relationship. The judgments coupled with the other judgments mentioned above permit scrutiny by Industrial or Labour Court to find out genuineness in the defence of denial of relationship by employer. The inquiry by Labour or Industrial Court will be only to find out whether relationship of employer and employee is indisputable. It cannot be forgotten that the jurisdictional fact to be decided in this matter is also the fact about which no decision can be taken by Labour or Industrial Court under U.L.P. Act if there is genuine dispute. While deciding whether the employer employee relationship is indisputable, it cannot record a finding that such relationship exists and therefore it is indisputable. Tests and factors determinative for aforesaid purpose as laid down by Hon. Apex Court from time to time cannot be applied to such material to create a relationship. These tests crystallised in recent judgments of Hon. Apex Court reported at between Workmen of Nilgiri Co-operative Marketing Society v. State of Tamil Nadu and between Ramsingh v. Union of India may be mentioned here. Briefly stated, in case of disputed relationship, several factors which would have a bearing on the result and the Court is required to consider are : (a) who is appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job, e.g. whether, it is professional or skilled work; (g) nature of establishment; (h) the right to reject. The distinction in this respect while answering the issue of "indisputable relation" is very fine but will have to be maintained. The tests at (a), (b) and (c) above alone can be applied only to once accepted material and documents which Court finds employer is not in position to deny. Application of other tests i.e. tests at (d), (e), (f), (g), (h) and "integration test" even to admitted material will not be possible because it will be holding inquiry into a disputed province. The only purpose of such inquiry is to examine bona fides of employer who comes up with denial of relationship. If after perusal of pleadings and records, it finds that employer can possibly demonstrate that there is no such relationship, it will have to give up the exercise. The jurisdiction can be exercised to hold limited inquiry and at the end thereof, the Labour or Industrial Court has to be in position to draw only one inference that such relationship was and is accepted by employer earlier, and to deliver verdict that stand in defence raised by employer is totally false and malafide. Even if two views of the matter appear probable, it will have to direct employee to file proceedings under B.I.R. Act or Industrial Disputes Act.
11. In this background when the complaint under Section 7 read with Section 28 of U.L.P. Act filed by present respondent Anand is looked intc, in paragraph 1 he mentions that he has filed the complaint in the capacity of employee and he mentions that he is employee of non-applicant-respondent i.e. present petitioner. However, next sentence is "the respondent-non-applicant is the Principal Employer and an officer under whom the applicant has been working as Driver". Thereafter in paragraph 2 it is stated that he was employed as a Driver by non-applicant-respondent in the office of non-applicant-respondent with effect from 24-9-1988. He states that he resumed duties accordingly as per directions of non-applicant-respondent. He worked therein till 19-12-1990 regularly and his name was-is also mentioned in the log book of the concern vehicle. In paragraph 3, he pleads that on 20-12-1990 when he went to join duty, he was not permitted to join by respondent without giving any written order. He states that "the respondent-non-applicant orally said that services of the complainant are-is terminated". In its reply respondent-non-applicant i.e. present petitioner stated in paragraph 1 that "It is false and hence denied that applicant is an employee of the non-applicant. It is submitted that the applicant has no locus standi to file the instant application or complaint against the non-applicant. It is absolutely false and hence denied that the respondent is the Principal Employer and an officer under whom the applicant has been working as Driver". Paragraph 2 of reply also contains similar denials and thereafter it is stated that "It is respectfully submitted that the applicant is not an employee of the non-applicant. The applicant worked under various contractors on ratelist basis. The non-applicant used to call quotations for supply of Labour for period of one-month from various contractors the lowest quotation is to be accepted for that month. After completion of period of one-month the contract on ratelist is over. The complainant was not working on regular establishment of non-applicant. The log book is maintained to verify vehicle consumption and under whose custody the vehicle is given. In fact, there is no relationship of employer and employee between the applicant and the non-applicant and question of termination of applicant services does not arise". Lastly it is pleaded that "The application and the complaint of the applicant is not tenable in the eye of law and therefore liable to be dismissed with costs".
A. In view of these pleadings, though Labour Court did not frame any issue about the disputed relationship as employer-employee between parties, it undertook that exercise to determine it from paragraph 8 of its judgment onward. It found that there is no appointment order or termination order in favour of respondent employee. It found that the names of officers appointing him or terminating him were not disclosed in the pleadings and their competency either to appoint him or terminate him has not been proved. It found that no documents were filed even to show his wages and there are no pleadings about wages. His evidence that at the time of his termination he was getting Rs. 900 to Rs. 950 per month was found to be unacceptable. It also found that he did not disclose whether he was appointed on daily wages or monthly wages. It found that he did not produce any document to show that he received wages from present petitioner, no evidence was produced by him to show mode and manner of getting wages. It therefore expressed doubt whether present respondent was appointed or engaged with respondent. It found that he even did not ask for production of vouchers to reveal payment made to him by petitioners. It found that once such doubt is created, employment of respondent cannot be fastened upon petitioner. Thereafter it also considered certain documents which are not exhibited as the same were not proved by respondent-employee. It considered those documents even on merit by ignoring the fact that they are not proved and found that Article-A, experience certificate, nowhere disclosed that he was working with petitioner. Alleged seniority list - Article-B was found to be not admissible because it is not signed by anybody and not proved. Article-C, a Xerox copy was found to have been issued after one year of termination of respondent and it revealed his continuation even after termination. Perusal of Article B by me reveal that it is statement showing the position of person working on NMR/HR/ratelist as on 31-1-1990. It contains serial number, name of person, total mandays, post and division. Up to page No. 4 i.e. till serial number 150,information is given under these five heads. From next page or serial number 151 information furnished is in seven heads and column of caste as also column of "land affected" seems to have been added. This information in seven columns continues up to serial number 242 and from next page again information is only in six columns i.e. last column of "land affected" is not appearing till serial number 429. Entries at serial number 419 to 429 appear on this page which shown as page No. 12 of List. These entries occupy only one-third portion of the page and remaining two/third is blank and even without any signature. Next page is shown as page No. 13 while page No. 11 also appears on it in same type-font in which the remaining entries on said page appear. However serial number from which entries on this page start is not clear and appear to have been corrected or over written. The entries appear under 12 columns and it is in this portion that the name of respondent is shown at serial number 526. Total days put in by him are mentioned as 405 below heading "days of ratelist". The last page of this list is number 20 in handwriting and number 21 in same type/font. Again it is not signed authenticated by anybody. The learned Labour Court has not accepted this document. Article-D is copy of forwarding letter dated 16-6-1989 by which details of employees in class 3 and class 4 and on daily wages has been forwarded to its Mumbai office by petitioners. Article-E is stated to be the accompaniment of this forwarding letter and name of respondent is shown at serial number 2 in it. It is mentioned that respondent has been working on daily wages from 24-9-1988 and has completed 100 days till 31-3-1989. Article-F is letter forwarding information of class 4 employees willing to work as Drivers or of drivers on daily wages. Labour Court has found that these documents at article D to F are not at all proved and it has refused to rely upon them. It further found that the respondent must have undergone some procedure for appointment and he did not disclose it. It therefore concluded that he must have worked under some contractor. It found that on vehicle of petitioner Driver on contract basis were working and hence entries in log book were not relevant. It held that complainant before it i.e. present respondent failed to prove employer-employee relationship.
B. The Industrial Court in exercise of revisional jurisdiction has reappreciated all these documents to arrive at different finding. Though propriety of such course of action is assailed by present petitioner by pointing out the limited scope available under Section 44 of U.L.P. Act, I find it unnecessary to consider this challenge. It is to be noted that Industrial Court held that strict rules of Evidence Act could not have been used by Labour Court and also found that petitioner did not produce relevant documents and preferred to draw adverse inference. The above details in relation to seniority list or the forwarding letters are not looked into. Importance was given to non-production of log book and letter given by respondent to Executive Engineer, Chandrapur demanding Rs. 100/- for petrol. The failure to give reply to representation of respondent and also failure to disclose name of contractor are factors used against present petitioner. It held that genuine documentary evidence has been erroneously rejected by Labour Court and it also recorded that Labour Court gave undue importance to fact that petitioner is government undertaking. It further presumed that even if respondent was engaged by contractor, petitioner would still be principal employer. It also accepted the evidence of respondent that he was getting Rs. 900 to Rs. 950 per month as salary.
C. In this respect, the Labour Court as also Industrial Court both could not and did not consider the limited scope of jurisdiction available to it when employer-employee relationship is in dispute. The Labour Court has in fact made an attempt to find out whether such relationship was established on record and answered it in negative. The Industrial Court has reversed this finding and held that employer-employee relationship is proved on record. Obviously there is no attempt to find out whether such relationship was indisputable when in facts of case before both the Courts it was not undisputed. In present writ petition, this Court has therefore only to find out whether in proceedings before Labour Court it could have been said that such relationship was indisputable and denial thereof by petitioner was frivolous and only with a view to harass respondent. The respondent nowhere asserted in his complaint that he was receiving wages from petitioners. The petitioner being government undertaking, could not have made payment either without obtaining voucher or signature on muster cum wage register. The respondent only pointed out that his name is mentioned in log book. However, he also mentioned that petitioner was his principal employer. Thus, he did not plead any direct relationship. Considering the fact that petitioner is government undertaking, contents of his complainant (stated above) are insufficient to point out existence of employer-employee relationship. The petitioner employer came with specific stand pointing out that respondent was ratelist employee. There was no reason for petitioner to malafidely deny relationship with respondent. The experience certificate on record did not mention that respondent was employed with petitioner for two years. The seniority list reveals that he was working on ratelist. If respondent was direct employee, there was no reason for him to write a letter to Executive Engineer, Chandrapur demanding Rs. 100/- only to fill in petrol in vehicle. When this entire material is perused, the defence of petitioner that there is no employer employee relationship cannot be held to be baseless and false. The relationship cannot be said to be indisputable or unquestionable. In any case the Labour Court therefore could not have exercised jurisdiction to decide U.L.P. complaint filed by respondent. The entire effort of Labour Court to find out relationship of employer and employee between parties is without jurisdiction. Consequently the order passed by Industrial Court in Revision is also without jurisdiction. The issue needs to be gone into and decided by Labour Court in reference to it by State Government i.e. appropriate government under Industrial Disputes Act.
12. In the circumstances order dated 17-9-1999 passed by Industrial Court, Nagpur in U.L.P. revision 397/1994 is quashed and set aside. The judgment of Labour Court, Chandrapur dated 15-6-1994 in U.L.P. complaint 39/1991 is also quashed and set aside. It is held that Labour Court has no jurisdiction to take of cognizance of said U.L.P. complaint. However, considering the time lapsed the facts require adherence to course followed in 2001 (III) CLR 1025 between Hindustan Coca Cola Bottling v. Bhartiya Kamgar Sena (supra) and Lokmat News Papers Ltd. v. Prabhakar Rambhauji Chaudhari, reported at 2003(1) Mh.LJ. 485 : 2003(1) CLR 550 (supra) even in present matter. No fruitful purpose will be achieved by holding conciliation proceedings. Accordingly, the State of Maharashtra, through its Secretary, Ministry of Labour, Mumbai is added as party respondent No. 3 in this petition. Petitioner to carry out this amendment immediately. Learned AGP waives notice for added respondent. The complaint filed by present respondent No. 2 before Labour Court, Chandrapur is treated as failure report for reference of industrial dispute submitted before State Government and it is directed that State Government shall either itself make reference or cause it to be made to Labour Court, Chandrapur or other competent Court about it as early as possible and in any case within period of two months from today. The reference is "Whether the termination of employee Shri A.L. Ramteke by employer Maharashtra Industrial Development Corporation through Executive Engineer, Chandrapur with effect from 20-12-1990 is valid or not? And to what relief employee Shri A.L. Ramteke is entitled?". The Court to which reference is made shall decide the same as early as possible and in any case within six months from the date of receipt of such reference. It is made clear that all issues and contentions raised by parties including the issue of existence of employer-employee relationship are kept open for adjudication in such reference proceedings and the Court deciding said reference shall not be influenced by any observation made by Labour Court, Chandrapur in its judgment dated 15-6-1994 or by Industrial Court in its order dated 17-9-1999 or by this Court in present judgment on any of such issues. Rule is made absolute in above terms without any order as to costs.