Bombay High Court
The Manager, Maharashtra Krushi ... vs The State Of Maharashtra And ... on 11 August, 2015
Bench: R.V. Ghuge
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4261 OF 2014
WITH
WRIT PETITION NO.4228 OF 2014
WITH
WRIT PETITION NO.4230 OF 2014
The Manager,
Maharashtra Krushi Udyog Vikas
Mahamandal Ltd., Khatkarkhana,
Plot No.C-51, Additional MIDC, Jalna,
Tq. & Dist.Jalna. ig ...PETITIONER in all (3) petitions
-VERSUS-
1 The State of Maharashtra.
Through the Secretary,
Industries, Energy and Labour
Department, Mantralaya, Mumbai.
(Copy to be served through
Standing Counsel, High Court Judicature
Bombay, At Aurangabad.)
...RESPONDENT NO.1 in all (3) petitions
2 Vinod s/o Krushnarao Kulkarni,
Age : Major, Occ : Service,
R/o C/o Kishanrao Suryabhan Bhojane,
Beside NRB Credit Society,
Samarth Nagar, Old Jalna,
Tq. & Dist.Jalna. ...RESPONDENT No.2 in WP/4261/2014.
2 Ram Madhukar Manvatkar,
Age : Major, Occ : Service,
R/o C/o Rajesh Ramesh Godse,
Shankar Nagar, Jalna.
Tq. & Dist.Jalna. ...RESPONDENT NO.2 in WP/4228/2014.
2 Kishor Ratan Pandit,
Age : Major, Occ : Nil,
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R/o Ramabai Nagar, Motibag,
Beside ZP Quarters, Old Jalna,
Tq. & Dist.Jalna. ...RESPONDENT NO.2 in WP/4230/2014
ALONG WITH
WRIT PETITION NO.9944 OF 2014
WITH
WRIT PETITION NO.9945 OF 2014
WITH
WRIT PETITION NO.9946 OF 2014
WITH
WRIT PETITION NO.9947 OF 2014
Gajanan Babasaheb Dengale,
Age : 34 years, Occ : Nil,
R/o Shankar Nagar, Old Jalna,
Dist.Jalna. ...PETITIONER in WP/9944/2014.
Balaji Omprakash Swami,
Age : 34 years, Occ : Nil,
R/o Shiv Nagar, Old Jalna,
Dist.Jalna. ...PETITIONER in WP/9945/2014.
Vishnu Tulshiram Mohite,
Age : 34 years, Occ : Nil,
R/o Kucha Vata, Old Jalna,
Dist.Jalna. ...PETITIONER in WP/9946/2014.
Rajesh Ramesh Godsey,
Age : 26 years, Occ : Nil,
R/o Shankar Nagar, Old Jalna,
Dist.Jalna. ...PETITIONER in WP/9947/2014.
-VERSUS-
Maharashtra Krushi Udyog Vikas
Mahamandal Maryadit, Khat Karkhana,
Plot No.C-51, Additional MIDC, Jalna,
Tq. & Dist.Jalna.
Through it's Manager.
...RESPONDENT in all (4) petitions.
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...
Mr.Bikram Chaudhuri, Advocate i/by Abhay Nevagi & Associates holding
for Mr.B.V.Virdhe, for the Establishment.
Mr.U.S.Mote, AGP, for the Respondent/State.
Mr.Vinod Prakash Patil, Advocate for the Employees.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 11th August, 2015
Oral Judgment:
1 In the first three petitions filed by the Petitioner/
Establishment, it is stated that the State of Maharashtra has been wrongly
arrayed as Respondent No.1. Leave to delete the State of Maharashtra is
prayed for. Leave granted. Deletion be carried out forthwith.
2 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
3 The first three petitions are preferred by the Establishment
challenging the judgments and awards of the Labour Court dated
28.02.2014 in Reference (IDA) Nos.03/2009, 01/2009 and 02/2009,
respectively. By the said Awards, the references are partly allowed and the
Petitioner Establishment has been directed to reinstate the Respondents/
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Workmen with continuity of service and 50% back-wages.
4 In the next four Writ Petitions, the Employees have assailed
the judgments and awards of the Labour Court dated 17.08.2013
delivered in Reference (IDA) Nos.05/2011, 04/2011, 09/2011 and
06/2011, respectively. By the impugned awards, all the reference cases
have been answered in the negative.
For the sake of brevity and to avoid repetition, the litigating
sides in these seven petitions will be referred to as "the Establishment"
and "the Employees".
6 In this judgment, in the event the term Establishment is
referred to as the Employer and the Respondents are referred to as the
Employees or Workmen, it shall not tantamount to this Court having
arrived at a conclusion that the litigating sides share an Employer-
Employee relationship (inter-se).
7 In the first three petitions, the learned Advocate appearing for
the Establishment, specifically draws my attention to the nature of
activities indulged into by the Establishment. It is a Government of
Maharashtra undertaking which engaged in manufacturing of granule
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mixed fertilizer. The said factory is located at Jalna Additional Industrial
Area. The activity is confined to sowing seasons of the farmers/
agriculturists thereby, it having a seasonal character.
8 The learned Advocate further indicates that the object of the
Establishment is to make fertilizer available to the agriculturists in the
State of Maharashtra on subsidized rates. The activity of manufacturing
the fertilizer is closely linked to the agricultural season and depending on
the crop condition.
9 The concerned Respondents/Employees in all these matters
have claimed to be in the employment of the Establishment. Their
durations of service rendered with the Establishment have been so stated
in their petitions. The Establishment has taken a stand that none of these
Employees were ever engaged or appointed by the Establishment directly.
There was no privity of contract between the parties. There was no
Employee-Employer relationship inter-se between them. All these
employees were deployed by the Labour Contractor by name B.V.Gunjal. It
is undisputed that despite this stand being taken, the labour contractor
B.V.Gunjal is not a litigating party.
10 All these Employees had alleged oral termination at the hands
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of the Establishment. They raised industrial disputes before the competent
authority. The Establishment claims that it took a stand as recorded above
that it is not a direct Employer and at best, could be termed as Principal
Employer going by the definition as is found in the Contract Labour
(Regulation and Abolition) Act, 1970.
11 The Establishment has specifically taken a stand before the
Labour Court that the labour contractor B.V.Gunjal had deployed these
Employees. It is not disputed that the references made to the Labour Court
arrayed the Establishment and the Employees as litigating parties. The
labour contractor was not arrayed as one of the litigating side. All these
matters before the Labour Court have proceeded without appearance of
the labour contractor.
12 In these first three petitions filed by the Establishment
challenging the awards which grant reinstatement, continuity and 50%
back-wages to the Employees, the Establishment points out the
conclusions drawn by the Labour Court while delivering the impugned
awards.
13 It is indicated from paragraph 11 of the impugned awards
that the Labour Court has considered the defence of the Establishment
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that the second party workmen before the Labour Court were employed
by the contractor. It is further indicated from paragraph 13 of the
impugned award that though the first party Establishment drew the
attention of the Labour Court to the documents at Exhibit U/32 to U/49,
the Labour Court held that it is not required to go into the details of the
documents placed on record by the Establishment.
14 The Labour Court in the impugned awards has specifically
observed in paragraph 12 as under:-
"Present Reference is based on the point,
whether, the second party is a workman or employee
of the first party or the contractor of the first party
Mr.B.V.Gunjal? present reference resolves (revolves)
around this point only."
15 The learned Advocate for the Establishment, therefore, takes
a serious exception to these Awards as they are in opposition to the tenets
of law. Every court is supposed to consider in totality the effect of
documentary evidence. De-hors the documentary evidence, the Labour
Court could not have proceeded to decide the references, is the
submission of the learned Advocate. The Labour Court has observed that
the establishment had not taken this stand before the Conciliation Officer.
16 Shri Patil, learned Advocate appearing for the Respondents/
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Employees in these first three petitions, strenuously defends the impugned
judgments and awards. He submits that the Labour Court has arrived at a
conclusion that the Employees are deployed by the Establishment. The
Employer-Employee relationship is established between these parties. The
references were, therefore, tenable. The findings on facts by the Labour
Court should not be interfered with by this Court in it's writ/ supervisory
jurisdiction.
Having considered the submissions of the learned Advocates
to the extent of the first three petitions, it needs no debate that the Labour
Court by it's conclusion in paragraph 14 has declined to go into the
documents placed on record. Even while answering the issues, I do not
find that the Labour Court has referred to the said documents which
would have assisted it in properly adjudicating these reference cases.
18 Very denial to consider the documentary evidence and
especially those documents which have been placed on record by the
Establishment and consequentially, the considering of only the evidence
put forth by the Employees, is not an acceptable procedure while dealing
with the case. Primarily on this count alone, these petitions deserve to be
allowed.
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19 The Apex Court in the matter of Vividh Kamgar Sabha v/s
Kalyani Steels reported in AIR 2001 SC 1534 : 2001 (2) SCC 381 has
observed as under:-
"4. At this stage it must be mentioned that this Court
has also in the case of Central Labour Union (Red
Flag) Bombay v. Ahmedabad Mfg. & Calico Printing
Co. Ltd. and Ors. reported in (1995) 2 LLJ 765 :
1995 Supp.(1) SCC 175, held that where the
workmen have not been accepted by the Company to
be its employees, then no complaint would lie under
the MRTU & PULP Act. We are in full agreement
with the above mentioned view.
5. The provisions of MRTU & PULP Act can only be
enforced by persons who admittedly are workmen. If
there is dispute as to whether the employees are
employees of the Company, then that dispute must
first be got resolved by raising a dispute before the
appropriate forum. It is only after the status as a
workmen is established in an appropriate Forum that
a complaint could be made under the provisions of
MRTU & PULP Act."
20 In similar circumstances, the Apex Court, in Cipla Limited v/s
Maharashtra General Kamgar Union reported in AIR 2001 SC 1165 :
2001(3) SCC 101, has observed in paragraphs 7, 8 and 9 as under:-
"7. In this Court it was submitted that the High Court
had proceeded entirely on wrong lines. In Gujarat
Electricity Board, Thermal Power Station, Gujarat v.
Hind Mazdoor Sabha (1995(5) SCC 27) the
question raised was whether the workers whose
services were engaged by the contractors but who
were working in the thermal power station of the
Gujarat Electricity Board at Ukai can legally claim
to be the employees of the Gujarat Electricity
Board. The industrial tribunal had adjudicated the
*10* 907.wp.4228.14.group
matter and held that the workmen concerned in the
reference could not be the workmen of the contractors
and, therefore, all the workmen employed by the
contractor should be deemed to be the workmen of
the Board. The industrial tribunal also gave
consequential directions to the Board for payment of
wages, etc. The award of the industrial tribunal
was upheld by the High Court in appeal. The
contention put forth before this Court was that after
coming into force of the Act it is only the appropriate
Government, which can abolish the contact labour
system after consulting the Central Board or the
State Board, as the case may be, and no other
authority including the industrial tribunal has
jurisdiction either to entertain such dispute or to
direct abolition of the contract labour system and
neither the appropriate Government nor the
industrial tribunal has the power to direct that the
workmen of the erstwhile contractor should be
deemed to be the workmen of the Board. The
Central Government or the industrial tribunal, as the
case may be, can only direct the abolition of the
contract labour system as per the provisions of
the Act but it does not permit either of them to
declare the erstwhile workmen of the contractor to be
the employees of the principal employer. As to what
would happen to an employee engaged by the
contractor if contract employment is abolished is
another moot question yet to be decided by this
Court. But that is not a point on which we are called
upon to decide in this matter.
8. But one thing is clear - if the employees are working
under a contract covered by the Contract Labour
(Regulation & Abolition) Act then it is clear that
the labour court or the industrial adjudicating
authorities cannot have any jurisdiction to deal with
the matter as it falls within the province of an
appropriate Government to abolish the same. If the
case put forth by the workmen is that they have
been directly employed by the appellant-company
but the contract itself is a camouflage and,
*11* 907.wp.4228.14.group
therefore, needs to be adjudicated is a matter which
can be gone into by appropriate industrial tribunal
or labour court. Such question cannot be examined
by the labour court or the industrial court
constituted under the Act. The object of the
enactment is, amongst other aspects, enforcing
provisions relating to unfair labour practices. If that
is so, unless it is undisputed or indisputable that there
is employer-employee relationship between the
parties, the question of unfair practice cannot be
inquired into at all. The respondent union came to
the Labour Court with a complaint that the workmen
are engaged by the appellant through the contractor
and though that is ostensible relationship the true
relationship is one of master and servant between the
appellant and the workmen in question. By this
process, workmen repudiate their relationship with
the contractor under whom they are employed but
claim relationship of an employee under the
appellant. That exercise of repudiation of the
contract with one and establishment of a legal
relationship with another can be done only in a
regular industrial tribunal/court under the I.D.Act.
9. Shri K.K. Singhvi, the learned senior Advocate
appearing for the respondent, submitted that under
Section 32 of the Act the labour court has the power
to decide all matters arising out of any application or
complaint referred to it for the decision under any
of the provisions of the Act. Section 32 would not
enlarge the jurisdiction of the court beyond what is
conferred upon it by other provisions of the Act. If
under other provisions of the Act the industrial
tribunal or the labour court has no jurisdiction to
deal with a particular aspect of the matter, Section
32 does not give such power to it. In the cases at hand
before us, whether a workmen can be stated to be the
workman of the appellant establishment or not, it
must be held that the contract between the appellant
and the second respondent is a camouflage or bogus
and upon such a decision it can be held that the
workman in question is an employee of the appellant
*12* 907.wp.4228.14.group
establishment. That exercise, we are afraid, would
not fall within the scope of either Section 28 or
Section 7 of the Act. In cases of this nature where
the provisions of the Act are summary in nature and
give drastic remedies to the parties concerned
elaborate consideration of the question as to
relationship of employer-employee cannot be gone
into. If at any time the employee concerned was
indisputably an employee of the establishment
and subsequently it is so disputed, such a question
is an incidental question arising under Section 32
of theAct. Even the case pleaded by the respondent-
Union itself is that the appellant establishment had
never recognised the workmen mentioned in Exhibit
A as its employees and throughout treated these
persons as the employees of the second respondent.
If that dispute existed throughout, we think, the
labour court or the industrial court under the Act is
not the appropriate court to decide such question, as
held by this Court in General Labour Union (Red
Flag), Bombay v. Ahmedabad Mfg. & Calico Printing
Co. Ltd & Ors. (1995 Supp (1) SCC 175), which
view was reiterated by us in Vividh Kamgar Sabha v.
Kalyani Steels Ltd. & Anr., (2001) 2 SCC 381."
21 In the light of the ratio laid down by the Apex Court, it is
clear that in a reference case under the Industrial Disputes Act, 1947 the
factum of employment between the Workman and the Principal Employer
can be gone into. Whether, the contract is sham and bogus and whether,
the contractor is a camouflage, can also be gone into. The issue of
maintainability of reference was, therefore, strictly not before the Labour
Court. In my view, the issue was as to whether, the contractor could be
arrayed in the said proceedings for a proper adjudication of the dispute
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and to avoid multiplicity of the litigation. This has also not been done by
the Labour Court.
22 The learned Advocates for the litigating sides in the above
backdrop have, therefore, submitted that there could not have been any
opposition to arraying the purported contractor B.V.Gunjal in the
proceedings before the Labour Court since his participation would have
assisted the Labour Court to decide the reference proceedings in the light
of the observations of the Apex Court in the cases of Kalyani Steel and
Cipla Limited (supra).
23 At this juncture, it would apposite to refer to the observations
if the Apex Court in the case of M/s Hochtief Gammon Vs. Industrial
Tribunal, Bhubaneshwar, AIR 1964 SC 1746. Paragraph Nos. 7 to 12 and
18 read thus :-
"7. In dealing with this question, it is necessary to bear in mind one
essential fact, and that is that the Industrial Tribunal is a Tribunal
of limited jurisdiction. Its jurisdiction is to try an industrial dispute
referred to it for its adjudication by the appropriate Government by an
order of reference passed under s. 10. It is not open to the Tribunal to
travel materially beyond the terms of reference, for it is well-settled
that the terms of reference determine the scope of its power and
jurisdiction from case to case. Section 10 itself had been subsequently
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amended from time to time. Act 18 of 1952 made substantial
amendments in s. 10. One of these amendments was that s. 10(1)(d)
now empowers the appropriate Government to refer the dispute or any
matter appearing to be connected with, or relevant to, the dispute,
whether it relates to any matter specified in the Second Schedule, or
the Third Schedule, to a Tribunal for adjudication. In other words,
under s. 10(1)(d), the appropriate Government can refer to the
Industrial Tribunal not only a specific industrial dispute, but can
also refer along with it matters appearing to be connected with, or
relevant to, the said dispute. In that sense, the power of the
appropriate Government has been enlarged in regard to the reference
of industrial disputes to the Tribunal.
8. Section 10(4) which was also added by the same amending Act
provides, inter alia, that the jurisdiction of the Industrial Tribunal
would be confined to the points of dispute specified by the order of
reference, and adds that the said jurisdiction may take within its
sweep matters incidental to the said points. In other words, where
certain points of dispute have been referred to the Industrial
Tribunal for adjudication, it may, while dealing with the said points,
deal with matters incidental thereto, and that means that if, while
dealing with such incidental matters, the Tribunal feels that some
persons who are not jointed to the reference should be brought before
it, it may be able to make an order in that behalf under s. 18(3)(b) as
it now stands.
9. Section 10(5) has now conferred power on the appropriate
Government to add to the reference other establishments, groups or
classes of establishments of a similar nature, if it is satisfied that these
establishments are likely to be interested in, or affected by, such
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dispute. In other words, if industrial dispute is referred to a Tribunal
for adjudication, and in the area within the territorial jurisdiction of
the appropriate Government there are other establishments which
would be affected by, or interested in, such a dispute, the appropriate
Government may add them to the said reference either at the time
when the reference is initially made, or during the pendency of the
said reference proceedings; but in every case, such additions can be
made before the award is submitted. Now, if such persons are added to
the reference, the industrial Tribunal may in exercise of its powers
under s. 18(3)(b) summon them to appear before it.
10. Section 18(b) with which we began, has also been amended by Act
36 of 1956, and it has now been renumbered. As a result, s. 18(b) is
now included in s. 18(3)(b). Section 18(3) provides, inter alia, that
an award passed by an Industrial Tribunal which has become
enforceable shall be binding on :
(a) all parties to the industrial disputes;
(b) all other parties summoned to appear in the proceedings as parties
to the dispute, unless the Tribunal records the opinion that they were
so called without proper cause.
11. The material words in s. 18(3)(b) are the same as they were
originally included in s. 18(b), and so, the implied power which could
be exercised by the Industrial Tribunal under s. 18(b) can now be
exercised by it under s. 18(3)(b). If the Tribunal thinks that the
parties who were summoned to appear before it were so summoned
without proper cause, it may record its opinion to that effect and then
the award which it pronounces would not be binding on them.
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12. Reverting then to the question as to the effect of the power
which is implied in s. 18(3)(b), it is clear that this power cannot be
exercised by the Tribunal so as to enlarge materially the scope of the
reference itself, because basically the jurisdiction of the Tribunal to
deal with an industrial dispute is derived solely from the order of
reference passed by the appropriate Government under s. 10(1). What
the Tribunal can consider in addition to the disputes specified in the
order of reference, are only matters incidental to the said disputes;
and that naturally suggests certain obvious limitations on the implied
power of the Tribunal to add parties to the reference before it,
purporting to exercise its implied power under s. 18(3)(b). If it
appears to the Tribunal that a party to the industrial dispute named
in the order of reference does not completely or adequately represent
the interest either on the side of the employer, or on the side of the
employee, it may direct that other persons should be joined who would
be necessary to represent such interest. If the employer named in a
reference does not fully represent the interests of the employer as such,
other persons who are interested in the undertaking of the employer
may be joined. Similarly, if the unions specified in the reference do not
represent all the employees of the undertaking, it may be open to the
Tribunal to add such other unions as it may deem necessary. The test
always must be, is the addition of the party necessary to make the
adjudication itself effective and enforceable ? In other words, the test
well be, would the non-joinder of the party make the arbitration
proceedings ineffective and unenforceable ? It is in the light of this test
that the implied of the Tribunal to add parties must be held to be
limited.
18. The results is, though we accept Mr. Chatterjee's argument that
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s. 18(3)(b) postulates the existence of an implied power in the
Tribunal to add parties and summon them, in the present case that
power cannot be exercised, because having regard to the limited
nature of the implied power, M/s. Hindustan Steel Ltd. cannot be
regarded as a necessary party under the provisions of s. 18(3)(b). The
appeal accordingly fails and is dismissed with costs."
24 The Division Bench of this Court has recently dealt with a
similar issue in the case of Digambar Madye and others Vs. Union of India
and others, 2015(II) CLR 540. The issue involved was regarding addition
of a party and amendment to one clause of the Schedule to the Reference
as observed in paragraph No.16 of the said judgment. The Court
concluded in paragraph Nos.19, 20 and 21 as under :-
"19. We find that if the Respondent No. 3 is made a party and the
amendment as sought is made, it would not expand the scope
dispute. The only additional question that would be decided is if in
the event the petitioners are successful in justifying their claim
against Respondent No. 2, whether the Respondent No. 3, who steps
into the shoes of Respondent No. 2, would be liable to perform the
obligations of Respondent No. 2 from 3.5.2006 or not.
20. In that view of the matter, we find that the Respondent No. 1 has
erred in rejecting the application. The only ground given in the
application is that on 27th December, 2014, the Respondent No. 3
was not in existence and, therefore, it cannot be impleaded as a
party respondent. Had the Respondent no. 1 has gone into the
averments made on behalf of the applicant in this application, he
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could have very well seen as to why, according to the petitioners, the
presence of Respondent No. 3 was necessitated.
21. In ordinary course, we could have remitted back the matter to
the Respondent No. 1 for considering afresh. However, we find that
the litigation between the parties is pending right from 1998. In any
case, since we are of the considered view that presence of Respondent
No. 3 is appropriate and proper, if not necessary for the decision of
the Reference, we do not propose to adopt that course. We find that
the application which seeks an amendment to clause 2 of Schedule to
the Reference and addition of Respondent No. 3 is necessary for
complete adjudication of the dispute between the parties. In any case,
we find that if the same is done, it will also avoid multiplicity of
litigations. As such, we are inclined to allow the application made by
the petitioners. We are fortified in the view taken by us, in view of
the Judgment of the Apex Court in the case of Telco Convey Drivers
Mazdoor Sangh and another v. State of Bihar and others AIR 1989
SC 1565 and of the Division Bench of this Court in the case of
Ramruch Pande and others vs. State of Maharashtra & Ors. 2002
(94) FLR 961."
25 With due circumspection, I am, therefore, of the view that the
impugned awards in the first three petitions deserve to be quashed and set
aside and the reference cases deserve to be remitted back to the Labour
Court. Necessary directions to ensure the presence of the contractor are
required to be issued, in light of the ratio laid down in the case of Hochtief
Gammon case (supra).
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26 Insofar as the remaining four petitions filed by the Employees
are concerned, Shri Patil, learned Advocate, has voiced the grievance of
the concerned employees on a limited aspect. He submits that in all these
four cases the Labour Court has proceeded in a hurried manner and
despite the reference cases not being pending for too long, has concluded
that the employees are causing delay since their lawyer travels from
Aurangabad to Jalna and is not available on a few occasions. Shri Patil,
therefore, submits that the Court has to ensure that justice is dispensed. If
the conduct of the employees could lead to an impression that they have
deliberately and willfully delayed the proceedings, the Labour Court
would have been justified in deciding the references by refusing
adjournments.
27 He further submits that the references were received in
December, 2011 and in a span of about 20 months, these references have
been decided by the Labour Court which delivered the impugned award
on 17.08.2013. He, therefore, makes a grievance that such haste was
neither warranted nor expected.
28 He further submits that the affidavits in lieu of examination in
chief which were filed by these Petitioners/ Employees have been
disregarded for the reason that the affidavits were not verified by the
*20* 907.wp.4228.14.group
Advocate of the Employees in the Court. Certain documents were filed in
the form of xerox copies. The attendance report produced before the
Conciliation Officer was also not proved.
29 Shri Patil, therefore, submits that the above fact situation led
to the impugned awards being delivered in a hurried manner. A proper
opportunity of leading evidence was not granted. The labour contractor
B.V.Gunjal was also not arrayed in the proceedings. He, therefore, prays
for quashing and setting aside of the impugned awards.
30 The learned Advocate for the Establishment relies on the
affidavit in reply. He points out that the Labour Court had noticed that the
employees were not seriously pursuing the cause of action and they had
sought adjournments. The issue of change in advocate had also cropped
up though the Establishment is not concerned with the said issue. Ample
opportunities to lead oral evidence and produce documentary evidence
were also granted.
31 He further submits that the Law of Evidence and the
provisions of the Code of Civil Procedure need to be followed when it
comes to placing the documents before the Court. Had the employees
taken the necessary efforts, they could have properly led oral and
*21* 907.wp.4228.14.group
documentary evidence in support of their cases. Having failed to
substantiate their contentions set out in the statements of claims, the
Employees cannot take the stand that due opportunity was not afforded to
them while recording the oral evidence. He, therefore, prays that these
four petitions be dismissed with costs.
32 By my conclusions recorded above, the first three petitions
are being allowed so as to enable the addition of the labour contractor as
a party to the reference proceedings. These cases are also covered by the
said conclusions arrived at in this judgment. For the said reasons, the
matters need to be remanded.
33 So also, it appears from the conclusions of the Labour Court
in paragraph 8 of the impugned judgments and awards in the four
petitions preferred by the Employees that their oral evidence has been
disregarded since there was no verification before the Court and the
affidavit in lieu of examination in chief was not in accordance with the
provisions of law. The documents which were sought to be pressed into
service were either xerox copies or were not proved.
34 I quite see that the Labour Court could have granted an
opportunity to the Employees looking at the fact that their lawyer used to
*22* 907.wp.4228.14.group
travel from outstation and on some occasions had found it difficult to
reach the Court in time. The reference cases cannot be said to be pending
for too long as they were registered before the Labour Court in December,
2011 and they stood decided within a period of one year, eight months
and 28 days.
35 For all these reasons, I find it appropriate to quash and set
aside the impugned judgments and awards and remit the reference cases
to the Labour Court for addition of parties, framing of proper issues and
permitting the litigating sides to lead additional evidence.
36 In the light of the above, the impugned judgments and
awards in the reference cases as stated below are quashed and set aside:-
WRIT PETITION NOS. REFERENCE (IDA) JUDGMENTS AND
NOS. AWARDS DATED
4261/2014 No.03/2009 28/02/2014
4228/2014 No.01/2009 28/02/2014
4230/2014 No.02/2009 28.02.2014
9944/2014 No.05/2011 17.08.2013
9945/2014 No.04/2011 17.08.2013
9946/2014 No.09/2011 17.08.2013
9947/2014 No.06/2011 17.08.2013
37 The reference cases are, therefore, remitted back to the
Labour Court for a fresh decision on the following conditions:-
*23* 907.wp.4228.14.group
(a) Both the litigating sides shall appear before the Labour Court,
Jalna on 14/09/2015.
(b) The Labour Court shall permit the Second Party Workmen to
amend the statement of claim by adding the Labour
Contractor as the First Party No.2, within three weeks from
the date of appearing and issue notice to the added First Party
No.2.
(c) The Labour Court shall direct the appropriate Government to
add the contractor as First Party second in the order of
reference and transmit the corrected order of reference to the
Labour Court, forthwith.
(d) The Labour Court shall frame appropriate issues looking at
the rival contentions of the Establishment and the Employees.
(e) The Labour Court shall not disregard the oral and
documentary evidence already recorded.
(f) The litigating sides will be at liberty to adduce additional oral
and documentary evidence.
(g) The Labour Court shall note that since this Court has not
dealt with the merits of the matters and has not made any
observation with regard to the same, these reference cases
shall be decided on their own merits.
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38 The first three petitions filed by the Establishment as well as
the other four petitions filed by the Employees are partly allowed. Rule is
made partly absolute in the above terms.
39 No costs.
(RAVINDRA V. GHUGE, J.)
