Alfa Laval (India) Ltd. vs Karbhari Devji Waghmare And Ors.
2002 Latest Caselaw 281 Bom

JUDGMENT

F.I. Rebello, J.

1. Rule.

Respondent waives service. Heard forthwith.

By the present petition, petitioners impugn the order dated September 16, 2000. The dispute had been referred by the appropriate Government to the Second Labour Court, Pune. The reference arises out of termination of the services of one Shri Karbhari Devji Waghmare. The relevant portion of the reference reads as under:

"Shri Karbhari Devji Waghmare whose services have been terminated by the management of Alfa Laval (I) Ltd., Dapodi, Pune w.e.f February 1, 1988 be reinstated in service with full back wages and continuity of services".

2. Parties appeared before the Second Labour Court and filed claims statement and written statement. The employer in their written statement raised a plea that there were no relationship of workman and employer. It was their contention that Shri Waghmare was in the personal employment of their President/Chair-Person/Managing Director one Ms. Leela Poonawala. On account of this plea, the workman moved an application under Section 18(3) of the Industrial Disputes Act, 1947 praying that Ms. Poonawala, Managing Director and V.A. Datar, Director be summoned to appear and directed to submit written statement. This was opposed by the company by their application contending that in fact what the workman was seeking to do was to amend the Reference order and in these circumstances the application ought to be rejected.

3. By the impugned order the Second Labour Court, Pune held that the Court under Section 18(3)(b) of the Industrial Disputes Act has got power to implead parties and for the purposes of deciding the real controversy the presence of Ms. Poonawala and Datar was required and as such allowed the application. At the hearing of the petition, on behalf of the petitioners their learned counsel contends that the order of the Second Labour Court is without jurisdiction as it has the effect of amending the Reference itself. It is further contended that Section 18(3) will not be attracted as in the event Labour Court arrives at the conclusion that the workman was in the employment of the petitioner, it will have jurisdiction to pass appropriate orders. In the event Labour Court comes to the conclusion that there is no relationship of workman and employer between the petitioner and Respondent No. 1, it will have to reject the Reference. It cannot direct the persons who are summoned under Section 18 or added as parties to take the workman in their services or reinstate the Respondent No. 1 or even direct payment of any compensation. On the other hand, on behalf of the Respondent, their learned counsel relied upon the judgment of the Apex Court in the case of Hochtief Gammon v. Industrial Tribunal, Bhubaneshwar, Orissa and Ors. . It is therefore, contended that the order is within jurisdiction and therefore, not liable to be interfered with.

4. Having heard counsel for the parties, in my opinion, the order of the Second Labour Court is liable to be set aside, as in fact by directing joinder of parties, what in fact the Second Labour Court has done is to amend the terms of the Reference itself. In the instant case, firstly the dispute as referred is on the allegation by the workman respondent that he was in service of the petitioner employer. The workman had at no point of time contended that his employer was the Chairman or Managing Director of the company. What the second Labour Court has done by summoning and directing joinder of Managing Director and Director virtually amounts to amending the terms for the Reference. Can the Labour Court if arrives at the conclusion that in fact that there is relation of workman and employer between the workman and the parties who are added, grant any relief in the reference presently made. The answer clearly would be no. The relief in the reference can be granted only in the event the Labour Court arrives at the conclusion that there is relationship of workman and employer between the Petitioner and Respondent No. 1. The plea of the employer will be immaterial. If the defence of the employer respondent No. 1 is that the workman in the reference is not their employee but the private employee of the Chairman/Managing Director, the onus of proving this and the burden thereof will be on the party taking such plea, in other words, the petitioner herein. In the instant case, from the pleadings all that can be seen is that the persons summoned to be joined at the highest would be witnesses on behalf of the petitioner herein in support of their plea if they desire to examine them. It is no doubt true that Section 18(3) permits the Labour Court/Industrial Tribunals to summon parties who are not parties to the Reference. This power under Section 18(3) is for the limited purposes of making effective the Award which may be passed or has been passed. In fact this was what really was in issue in the case of Hochtief Gammon (supra). In that case, Hindustan Steel Limited was sought to be joined and summons was issued against them. The issue was regarding payment of bonus. In that case, Hochtief Gammon were doing contract work for Hindustan Steel Ltd. which was the principal employer. It is settled that in the event the contractor does not pay the legal dues of the workman, it can be recovered from the principal employer. It is in that context, for the purpose of making effective the Award, that may be passed that summons was issued to Hindustan Steel Ltd. That is not the case in so far as present petition is concerned. If the workman succeeds in the reference, the award has to be enforced against the company Employer and not against the persons holding any post in the company whether Chairman or Members of the Board of Directors. At this stage, it is not necessary to go into the issue whether the reference itself can be amended.

5. With the above observations, the petition is made absolute in terms of Prayer Clause (a). In the circumstances of the case, there shall be no order as to costs.

6. P. A. to issue authenticated copy of this order.