Bombay High Court

J.K. Education Soc vs Shri Sunil Uaike And 32 Ors on 5 October, 2015

Bench: Ravi K. Deshpande

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                    NAGPUR BENCH, NAGPUR




                                                    
                        Writ Petition No.1876 of 2009


      J.K. Education Society,




                                                   
      Rani Kothi, Civil Lines,
      Nagpur, through its
      Director Shri Manohar Joshi.                      ... Petitioner




                                         
           Versus


      1. Shri Sunil Uaike.
                             
                            
      2. Shri Sachin Mayur.

      3. Shri Anand Pendharkar.

      4. Shri Pratap Bhaisare.
      


      5. Shri Manoj Keshari.
   



      6. Shri Vasant Thool.

      7. Shri Fulchand Yadav.





      8. Smt. Meerabai Kudawale.

      9. Smt. Ratna Kharekar.

      10. Smt. Ratna Ban.





      11. Smt. Maya Nandeshwar.

      12. Smt. Devangana Koche.

      13. Smt. Parvati Dakah.




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      14. Smt. Shanta Makarwar.




                                                
      15. Smt. Malati Hivarkar.

      16. Smt. Kamala Sathale.

      17. Smt. Sushila Devikar.




                                               
      18. Smt. Chandrakala Chitade.

      19. Smt. Pramila Kadam.




                                      
      20. Smt. Manda Ukey.
                             
      21. Shri Kishor Makarwar.

      22. Shri Kamal Kuppalwar.
                            
      23. Shri Suresh Palewar.

      24. Smt. Kusum Bansod.
      


      25. Shri Shashi Godre.
   



      26. Smt. Asha Pendam.

      27. Shri Ramlakhan Dwiwedi.





      28. Smt. Madhusudan Dwiwedi.

      29. Shri Kishor Dhenge.

      30. Smt. Kusum Shriwas.





      31. Shri Gajanan Fate.

      All aged about Major and
      Occupation - Service,
      All C/o The Hingle Bell,
      Modern School & J.K. Education Society,




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      Non-Teaching Workers Union,




                                                                                     
      Sadar, Gond Mohalla, Nagpur.




                                                             
      32. Shri R.R. Naidu,
          General Secretary,
          Vidarbha Hammer Workers Union,
          Dhantoli, Nagpur.




                                                            
      33. Member, Industrial Court,
          Temple Road, Civil Lines,
          Nagpur.                                               ... Respondents




                                              
      Shri Shashank V. Manohar, Advocate for Petitioner.
                             
      Shri Rohit Deo, Advocate for Respondent Nos.1 to 32.
                            
                    Coram : R.K. Deshpande, J.

                    Dated  : 05    October, 2015
                                th
      


       Oral Judgment :

1. In Complaint (ULP) No.614 of 2000, the Industrial Court, by

its judgment and order dated 1-4-2009, has held that the

petitioner-employer is engaged in an unfair labour practice under

Item 5 of Schedule IV of the Maharashtra Recognition of Trade Unions

and Prevention of Unfair Labour Practices Act, 1971 (for short, "the

MRTU & PULP Act"). The direction is given to the petitioner-employer

to cease and desist from such unfair labour practice. It is the further

direction given to the petitioner-employer to grant benefits of the

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Government Resolution at Exhibit 40 dated 13-5-1999 to the

complainants in their employment from the date of the said

Government Resolution. This is the subject-matter of challenge in this

petition by the original respondent in the said complaint.

2. The case of the complainants before the Industrial Court was

that the complainants are Class-III and Class-IV employees of the

petitioner-Society and are the "workmen", as defined under

Section 3(5) of the MRTU & PULP Act. It is alleged in the complaint

that the petitioner-Society is registered under the Societies

Registration Act and the Bombay Public Trusts Act and it carries out

imparting of education in two different heads - (i) Jingle Bell

Kindergarten, and (ii) Modern School. It is further alleged in the

complaint that the petitioner-Society is having two branches - one at

Rani Kothi, Civil Lines, Nagpur, and another at Koradi Road, Nagpur,

and the same are headed by Smt. Neeru Kapai and Shri S.M. Joshi. It

is further alleged that the petitioner-Society is a private Institution, for

which the Government of Maharashtra has adopted the pay-scales as

recommended by the 5th Pay Commission for the employees. It is

alleged that the petitioner-Society has accepted the pay-scales

recommended by the 5th Pay Commission to its teachers and

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managerial staff, however the benefits of it are not extended to

Class-III and Class-IV employees. It is alleged that the complainants

are getting Rs.2,000/- per month, and in spite of making

representations, the payment is not being made as per the

recommendations of the 5th Pay Commission. The complainants

invoked Item 9 of Schedule IV of the MRTU & PULP Act and claimed

the pay-scales as recommended by the 5th Pay Commission for

Class-III and Class-IV employees with effect from 1-1-1996 along with

the interest at the rate of 18% per annum.

3. In the written statement filed by the petitioner-Society, the

claim was opposed and the specific stand is taken that many of the

complainants are not the employees of the petitioner-Society, which

runs only Modern School. It is the further stand taken that the

complainants may be the employees of Jingle Bell Kindergarten, which

is a separate entity and does not come under the purview of the

petitioner-Society. The complainants have not joined their employer as

a party-respondent and hence the complaint is liable to be dismissed

for non-joinder of necessary party. It is the further stand taken that

the petitioner-Society runs Modern School, which is not receiving any

grant from the State Government and it is an unaided School. It is

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also the stand taken that the complaint is liable to be dismissed for

misjoinder of parties.

4. One of the complainants, viz. Sunil s/o Vasantrao Uike,

entered the witness-box and deposed in the cross-examination as

under :

" The Complaint is filed by 31 employees. I cannot

tell how many of these 31 employees are working at Jingle Bell. And how many are working with J.K. Education Society. I have made no enquiry about

Jingle Bell whether is Company or Society or Trust etc. Jingle Bell is up to KG Standard. J.K. Education Society runs Modern School and classes from 1st to 12th Standard. It is not correct that because Jingle Bell and Modern School are working in one building I am

calling them to be one unit. To my information Mrs. Neeru Kapai is the sole office bearer. It is correct that

Jingle Bell is partnership firm. I do not know the names of partners. I am given appointment order by J.K. Education Society. In my appointment letter there is no condition regarding my transfer to Jingle Bell as

well there is no such condition in the appointment letters of the other complainants. I have not filed documents on record to show that 5th pay commission is made applicable to private schools. It is not correct that pay commission is only applicable to Government

employees. It is correct that Jingle Bell and Modern School are not getting government aid. I am now shown Exh.40 it is not correct that Exh-40 Government resolution is not applicable to private unaided schools. ..."

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5. In the decision of this Court in the case of Lokmat,

Proprietors, Lokmat Newspapers Ltd. v. Prabhakar Rambhauji

Choudhari and others, reported in 2003(1) Mh.L.J. 485, it has been

held in para 16 as under :

"16. The issue which is raised before the Court is as regards the jurisdiction of the Industrial Court to entertain the complaint under MRTU and PULP Act

1971, in a case where the very relationship between the parties of employer and employee is in dispute. This

issue arises on the ratio of the authorities cited before this Court in General Labour Union (Red Flag) Bombay (cited supra) which held that the workmen have first to

establish that they are workmen of the respondent Company before they can file any complaint under the Act. This was followed by the Supreme Court in the subsequent cases like Vividh Kamgar Sabha (cited supra) and the Supreme Court observed in reference to

the cases of General Labour Union (Red Flag) Bombay, that the provisions of MRTU and PULP Act, 1971 can

only be enforced by persons who admittedly are workmen. If there is a 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 workman is established in an appropriate forum that the complaint could be made under the provisions of the MRTU and PULP Act, 1971. In the very case, the Supreme Court also took into consideration the

contention of behalf of the workmen that in a given case, a formal denial of such a relationship can be taken only to defeat the claim, which has been repelled by the Supreme Court by observing that in the case of Vividha Kamgar Sabha (cited supra) also, it was a disputed fact as in the written statement, it has been categorically denied that the members of the appellant-

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Union were employees of the respondent-Company. The

question has been agitated before the Industrial Court. The Industrial Court has given a finding on facts that

the members of the appellant-Union were not the employees of the respondent-company. This is a disputed fact and thus till the appellants or their members, get the question decided in a proper forum, this complaint was not maintainable. Further in the

case of Cipla Ltd. (cited supra) again this question came up for consideration and the Supreme Court held in reference to MRTU and PULP Act that 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. In the case of Cipla Ltd. (cited supra), the respondent Union came to the Labour Court with the

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

and, therefore, what this Court finds is that in a given facts and circumstances, particularly on referring to the jurisdictional facts, it appears to be contentious issue as regards the relationship between the parties of that of employer and employee, and the objection to

jurisdiction appears on the face of the proceedings, then the Industrial Court would have no jurisdiction to entertain the complaint under the MRTU and PULP Act, 1971."

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6. The position of law as laid down in the above

decision that in the absence of employer-employee relationship, the

Industrial Court shall not have jurisdiction under Section 28 of the

M.R.T.U and P.U.L.P Act, is not disputed by learned counsel Shri Rohit

Deo appearing for the respondents. After going through the

averments made in the complaint, I do not find any specific averment

that the complainants are either working in the Modern School or in

the Jingle Bell School. The vague assertion is that they are employees

of the petitioner Society. The complainants have not produced the

letter of appointment in support of such stand. One of the

complainants has entered the witness-box and has stated that Jungle

Bell and Modern School are two different entitites and that he is not

aware as to how many out of 31 employees are working at Jingle Bell

School and how many are working with J.K.Education Society. The

complainants have failed to discharge their initial burden to establish

relationship of employer-employee and therefore, there was no

question of the petitioner to lead evidence in rebuttal. Therefore, the

Industrial Court has committed an error in entertaining such

complaint and issuing direction to the petitioner to grant benefit of the

resolution at Exh. 40 to the complainant. The judgment and order

impugned cannot, therefore, be sustained and the complaint in liable

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to be dismissed.