Bombay High Court

Executive Engineer (O & M vs District Jalgaon on 23 November, 2010

Bench: S. S. Shinde

                                            1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                    APPELLATE SIDE, BENCH AT AURANGABAD




                                                       
                        WRIT PETITION NO. 3102 OF 1997




                                                      
     Executive Engineer (O & M)
     Maharashtra State Electricity Board
     R/o. Chalisgaon, District Jalgaon                           ...Petitioner

           Versus




                                       
                       
     Hajarabi w/o Abbas Khatik
     Age major, Occ. Labour,
     R/o Jamada, Tq. Chalisgaon
                      
     District Jalgaon                                            ...Respondents

                                           .....

     Mr. P.B. Paithankar, advocate for the petitioner
      


     Mr. A.R. Rathod, advocate for respondent
   



                                           .....

                                                   CORAM: S. S. SHINDE, J.





                                DATE OF RESERVATION
                                OF JUDGMENT                              : 16 .11.2010


                                DATE OF PRONOUNCEMENT





                                OF JUDGMENT                              : 23.11.2010




     JUDGMENT:

1 This writ petition takes exception to the judgment and order

dated 14.3.1997, passed by the Member, Industrial Court, Nashik,

Camp at Jalgaon, in complaint (ULP) No. 426 of 1991.

2 The respondent herein is the original complainant and the

petitioner herein is the original respondent before the Industrial Court

at Nashik. The respondent had filed a complaint under Item 5,6, and 9

of Schedule IV of the Maharashtra Recognition of Trade Union and

Prevention of Unfair Labour Practice Act, 1971 (hereinafter for the

sake of brevity referred to as "MRTU and PULP Act"), against the

petitioner. It was contended in the said complaint that the husband of

the respondent was in the employment of the petitioner herein as line

helper on permanent basis since 1981. While he was working with the

petitioner, he met with an accident during the course of employment

on 3.5.1987 and suffered 90% disability and due to that he expired on

15.6.1989.

3 Deceased Abbas Usmal Khatik has two sons and two daughters

and one wife i.e. the complainant. At the relevant time, all four

children were minors. The respondent wife has no source of income

and she is only Karta for her family. Her children are dependent upon

her. She made requests from time to time to the petitioner employer to

appoint her on compassionate ground, however, the employer refused

to do so. It is the contention of the respondent that the petitioner

employer has adopted unfair labour practice by not giving her

employment and the respondent has also violated various guidelines

and circulars, therefore, she prayed that she would be taken in the

employment of the respondent and further direction should be given to

the petitioner that difference of wages should be given to her from the

date of filing of application for appointment/employment. It was further

prayed that the complaint should be allowed with costs. In support of

her contention the complainant has filed as many as 17 documents

before the Industrial Court.

4 The petitioner herein who is employer has filed preliminary

objection vide Exh. C-2 on 2.8.1991 stating therein that the

complainant is not workman within the meaning of Section 2(s) of the

Industrial Dispute Act, 1947. It was further contended that there is no

employer and employee relations between the petitioner and the

respondent, and therefore, the court has no jurisdiction to entertain the

complaint. As such, the complaint is not tenable. It was further

contended that the court should frame preliminary issue as to whether

the complaint filed by the complainant is tenable in law. The petitioner

had also prayed that if the Industrial Court comes to the conclusion

that the complaint filed by the complainant is tenable in law as well as

on facts then the petitioner employer may be allowed to submit its

detailed reply to the complaint, since the said issue goes to the root of

the matter. It was, therefore, prayed that since the complainant is not

workman within the meaning of section 2(s) of the Industrial Dispute

Act, 1947, the complaint filed by the complainant deserves to be

dismissed.

5 The Industrial Court framed as many as three issues for its

consideration, which are reproduced herein below;-

i) Whether the respondent proves that the complaint is not

maintainable under the provisions of M.RT.U. and P.U.L.P. Act, 1971?

ii) Whether the complainant proves that she is entitled to get

employment on compassionate grounds?

iii) What order?

The Industrial Court allowed the complaint filed by the

respondent herein and declared that the petitioner herein is engaged

in unfair labour practice and further directed to consider the

application of the respondent herein and to appoint her in the

employment on proper post on compassionate ground as provided in

their service Rules. Hence, this petition.

6 Learned counsel appearing for the petitioner submits that it was

specific contention of the petitioner herein that there is no relationship

as employer and employee between the petitioner and the respondent

and therefore, the complaint is not maintainable. It is further argued

that the Industrial Court was obliged to frame preliminary issue about

the relationship between the petitioner and the respondent and further

to adjudicate the said issue and render the findings about the

maintainability of the complaint. It is further argued that it was specific

case of the petitioner that said issue is required to be adjudicated first

and in case the Industrial Court comes to the conclusion that the

complaint is maintainable, in that case opportunity should have been

given to the petitioner herein to file written statement and to lead

evidence. Counsel for the petitioner, invited my attention to the written

statement filed before the Industrial Court to contend that it was

specifically stated in the written statement that in case the court

decides the preliminary issue about maintainability of the complaint in

favour of the respondent, in that case, the petitioner should be given

opportunity to file further written statement on merits and to lead the

evidence. However, the Industrial Court chosen to frame the issue and

without affording proper opportunity to the petitioner to file further

written statement and to allow the petitioner to lead evidence, allowed

the complaint. According to the counsel for the petitioner, the course

adopted by the Industrial Court was impermissible in law. The

Industrial Court should have adjudicated the preliminary issue about

relationship between the petitioner and the respondent and about

maintainability of complaint and then only should have proceeded to

frame further issues at later stage for adjudication on merits of the

matter. In support of his contention, learned counsel has placed

reliance on the reported judgment of the Hon'ble Supreme Court in the

case of Sarva Shramik Sangh Vs. M/s. Indian Smelting and

Refining Co. Ltd. and others, reported in AIR 2004 SC 269 and in

the case Electronics Corporation of India Ltd. Vs. Electronics

Corporation of India Service Engineers Union, reported in AIR

2006 SC 2996. Relying on those judgments, learned counsel would

contend that unless there is relation as employer and employee and

unless said fact is ascertained by the Industrial Court, further

adjudication on merits is impermissible.

7 On the other hand, learned counsel for the respondent submits

that the Industrial Court has considered all aspects including the

preliminary objection raised by the petitioner herein that the complaint

is not maintainable. Learned counsel invited my attention to the

findings recorded by the Industrial court in para 20 of the judgment.

Learned counsel further invited my attention to Exh. R-1 that the

relevant Rules and the scheme about giving employment to the sons

and daughters of the deceased employee. According to the learned

counsel for the respondent, the Industrial Court taking into

consideration the relevant Rules and the scheme which is applicable

to the petitioner establishment, has directed to give appointment on

compassionate ground. It is further submitted that it is not in dispute

that the husband of the respondent sustained serious injuries during

the course of employment, therefore, the counsel for the respondent

relying on the findings recorded by the Industrial Court would contend

that the interference by this court in the findings recorded by the

Industrial Court is not warranted.

8 I have given due consideration to the rival submissions

advanced by the counsel for the parties. In my opinion, the counsel for

the petitioner is correct in his contention that the Industrial Court

should have framed preliminary issue about maintainability of

complaint and after decision on the said issue, the court should have

proceeded on merits by further framing the issue to that effect. It is not

in dispute that the respondent herself was not in employment of the

petitioner. On careful perusal of the reasons and findings recorded by

the Industrial Cort, in my opinion, the Industrial Court has utterly failed

to address the preliminary issue raised by the petitioner about

maintainability of complaint. The Industrial Court has recorded cryptic

finding in para 20 of its judgment, which reads thus:-

"20 Considered the arguments advanced by the learned advocate for the complainant. Perused the documents

produced on record. Carefully examined the evidence of the complainant and on applying my mind to the facts and circumstances involved in this case and on perusal of the documentary evidence on record, I am of the opinion that the respondent has indulged in unfair labour practice under Item 9 of Schedule IV of the M.R.T.U. And P.U.L.P. Act 1971. Item 5 and 6 are not attracted in this matter for the simple reason that there is no employer-employee relationship between the

complainant and the respondent. However, the service regulations providing for appointment of the dependent of the

employee on compassionate ground on certain contingencies

referred to in the Service Regulations and/or subsequent circulars or correction slips produced on record are the service conditions and the respondent being a statutory body it amounts

agreement, settlement covering the Service Conditions of the employee and an approach thereof or non implementation thereof being an unfair labour practice. I have to record that the

said unfair labour practice had been committed by the respondent and respondent is indulging in the said unfair labour

practice even thereafter and therefore, the Issue No.2 is answered in affirmative. Since I have already held that the

complaint is maintainable Issue No.1 is answered in negative. "

9 Upon perusal of the contents in para 20, extracted herein above,

it is abundantly clear that no reasons have been recorded by the

Industrial Court how the petitioner herein i.e. employer has indulged in

unfair labour practice under Item 9 Schedule IV of the M.R.T.U. And

P.U.L.P. Act, 1971. On careful perusal of the aforesaid paragraph, it is

clear that no reasons have been recorded by the Industrial Court and

by cryptic finding the Industrial Court concluded that the employer has

indulged in unfair labour practice. Secondly, there is no discussion

even on merits of the matter as to which Circulars, Rules and the

Regulations are applicable in the case of the respondent. Thirdly,

there is also no exhaustive discussion about preliminary objection

raised by the petitioner about relationship as employer and employee

between the petitioner and the respondent. On careful perusal of the

findings recorded by the Industrial Court, it is abundantly clear that the

Industrial Court has not looked into the relevant provisions and

authoritative pronouncement of the Hon'ble Supreme Court. The

Hon'ble Supreme Court in the case of Sarva Shramik Sangh (supra)

in para 21 held thus:-

"

There can be no quarrel with the proposition as 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 CIPLS's case (supra) the Maharashtra Act would have full application. When the basic claim is disputed obviously the issue has to be adjudicated by the forum which is competent to

adjudicate. The sine quo 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." (Emphasis supplied).

Therefore, it follows, from the aforementioned authoritative

pronouncement of the Hon'ble Supreme court that the Industrial court

was obliged to first decide the question about maintainability of the

complaint separately. Secondly, though it was specific contention of

the petitioner herein that after adjudicating the preliminary issue about

maintainability of the complaint and relationship between the petitioner

and the respondent as employer and the employee, the petitioner be

given chance to file detail written statement and to lead evidence has

been turned down by the Industrial Court by framing all issues

simultaneously.

igTherefore, the Industrial Court has adopted the

course which was not permissible in law. Thirdly, the findings

recorded by the Industrial court are cryptic in nature and without giving

opportunity to the petitioner to file further written statement on merits of

the matter and also not allowing the petitioner to lead evidence.

Fourthly, the Industrial Court has not discussed which Rules,

Regulations or the guidelines are applicable for appreciating the claim

of the respondent for appointment on compassionate ground. It is also

relevant to mention that the operative part of the order of the Industrial

Court has no clarity. The Industrial Court in clause 3 of its operative

part of the order has directed thus:-

"3. The respondent is further directed to consider the application of the complainant and to appoint her in the employment on the proper post on compassionate ground as provided in their service Rules."

10 On perusal of clause No.3, it creates confusion whether the

Industrial Court has directed to consider the application of the

complainant and after considering the said application to take decision

about her appointment or to consider the application and give

appointment to the respondent straightway. Therefore, taking into

consideration the peculiar facts and circumstances of the case and

more particularly the cryptic findings recorded by the Industrial Court

ignoring the preliminary objection of the petitioner about maintainability

of the complaint, in my opinion, the only course open for this Court to

remand the matter back to the Industrial Court for fresh adjudication.

Since the matter requires recording of evidence by the parties, the only

course open is to remand the matter back to the Industrial Court.