Bombay High Court
Chandrakala Lalaji Misal And ... vs Marathwada Medical Research And ... on 30 October, 2015
Bench: R.V. Ghuge
*1* F-WP56342014.doc
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5634 OF 2014
1 Smt. Chandrakala W/o Lalaji Misal
Age : 40 years, Occu : unemployed,
R/o Ashok Nagar, Masnatpur,
Chikalthana MIDC Area,
Aurangabad.
2 Smt. Surekha W/o Madhukar Waghmare
Age : 35 years, Occu : unemployed,
R/o Prakashnagar, Mukundwadi,
Aurangabad.
3 Smt. Kanta Baban Sable
Age : 32 years, Occu : unemployed,
R/o Ashok Nagar, Masnatpur,
Chikalthana MIDC Area,
Aurangabad.
4 Manda W/o Vasant Bankar
Age : 35 years, Occu : unemployed,
R/o Sanjaynagar, Mukundwadi,
Aurangabad.
5 Prakash S/o Rambhau Mhaske
Age : 35 years, Occu : unemployed,
R/o Ashok Nagar, Masnatpur,
Aurangabad.
6 Mrs. Sangeeta Sanjay Nikalje
Age : 34 years, Occu : unemployed,
R/o Ashok Nagar, Masnatpur,
Aurangabad.
7 Smt. Gayabai Gautam Shinde
Age : 33 years, Occu : unemployed,
R/o Ashok Nagar, Masnatpur,
Aurangabad.
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8 Dhondabai W/o Ram Pendharkar
Age : 42 years, Occu : unemployed,
R/o Ashok Nagar, Masnatpur,
Aurangabad.
9 Vimalbai W/o Sambhaji Shinde
Age : 45 years, Occu : unemployed,
R/o Ashok Nagar, Masnatpur,
Aurangabad.
10 Smt. Lilabai W/o Fakirrao Dhotre
Age : 40 years, Occu : unemployed,
R/o Ashok Nagar, Masnatpur,
Aurangabad. ...Petitioners.
-Versus-
Marathwada Medical Research and
Rural Development Institution Ltd,
(Seth Nandlal Dhoot Hospital,)
Plot No. A-1, Chikalthana,
MIDC Area, Aurangabad. ...Respondent.
WITH
WRIT PETITION NO. 5635 OF 2014
1 Laxmibai Dilip Hiwarale
Age : 32 years, Occu : unemployed,
R/o Sanjay Nagar, Mukundwadi,
Aurangabad.
2 Mrs. Ujwala Ravindra Gomate
Age : 35 years, Occu : unemployed,
R/o Jaibhavani Nagar,
Aurangabad.
3 Vikas S/o Suresh Misal
Age : 27 years, Occu : unemployed,
R/o Sindiban, Masnatpur,
Chikalthana MIDC Area,
Aurangabad.
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4 Sandip S/o Dajiba Bodhak
Age : 30 years, Occu : unemployed,
R/o Sindiban, Masnatpur,
MIDC, Chikalthana,
Aurangabad.
5 Sangita Baban Dabhade
Age : 33 years, Occu : unemployed,
R/o Chikalthana, Aurangabad.
6 Radha Tanaji Rupekar
Age : 33 years, Occu : unemployed,
R/o Mukundwadi, Aurangabad.
7 Shaikh Rajiya Kalim
Age : 39 years, Occu : unemployed,
R/o Murtijapur, Mhada Colony,
Aurangabad.
8 Sunil S/o Gangadhar Narwade
Age : 30 years, Occu : unemployed,
R/o Sanjay Nagar, Mukundwadi,
Aurangabad.
9 Chandrakala Sudhakar Ingale
Age : 35 years, Occu : unemployed,
R/o Sindiban, MIDC, Chikalthana,
Aurangabad.
10 Sheshrao Ramdhan Rathod
Age : 35 years, Occu : unemployed,
R/o Girija Mata Colony, Mukundwadi,
Aurangabad.
11 Seema Chandanshive
Age : 30 years, Occu : unemployed,
R/o J-Sector, Mukundwadi,
Aurangabad. ...Petitioners.
-Versus-
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Marathwada Medical Research and
Rural Development Institution Ltd,
(Seth Nandlal Dhoot Hosptial,)
Plot No. A-1, Chikalthana,
MIDC Area, Aurangabad. ...Respondent.
WITH
WRIT PETITION NO. 5640 OF 2014
1 Smt. Vastsalabai W/o Vishnu Jadhav
Age : 32 years, Occu : unemployed,
R/o Kamgar Chowk, Chikalthana,
Aurangabad.
2
Smt. Sindubai W/o Raju Sonawane
Age : 33 years, Occu : unemployed,
R/o C/o Rameshwar Kirana Stores,
Garkheda Parisar, Aurangabad. ...Petitioners.
-Versus-
Marathwada Medical Research and
Rural Development Institution Ltd,
(Seth Nandlal Dhoot Hosptial,)
Plot No. A-1, Chikalthana,
MIDC Area, Aurangabad. ...Respondent.
.............
Shri T.K.Prabhakaran a/w Shri Telangre G.S., Advocates for the
Petitioners.
Shri Ashok Patil a/w Shri Joshi Arvind Ramakant, Advocates for
Respondents
............
CORAM : RAVINDRA V. GHUGE, J.
Reserved on : 23rd October, 2015.
Pronounced on : 30th October, 2015.
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Judgment :
1 Rule. Rule made returnable forthwith and heard finally by
the consent of the parties.
2 On 25.08.2015, this Court has passed the following order:-
"1 The learned Advocates submit on instructions from
their respective clients present in the Court that they
have no objection if this Court hears these matters.
2 These matters have been heard for almost two hours.
3 Stand over to 07.09.2015 at 02:30 pm as PART-
HEARD, at the request of the learned Advocates."
3 The Petitioners in the first petition challenge the judgment
and order dated 11.12.2013 passed by the Industrial Court at Aurangabad
by which Complaint (ULP) No.47/2008 filed by the Petitioners was
dismissed.
4 The Petitioners in the second petition are aggrieved by the
judgment and order dated 11.12.2013 passed by the Industrial Court,
Aurangabad by which Complaint (ULP) No.97/2008 filed by these
Petitioners has been dismissed.
5 The Petitioners in the third petition are aggrieved by the
judgment and order dated 11.12.2013 passed by the Industrial Court,
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Aurangabad by which Complaint (ULP) No.50/2008 filed by these
Petitioners has been dismissed.
6 The Petitioners in these petitions are identically placed. They
have preferred the above referred three identical complaints against the
same Respondent as in these petitions and which have been dismissed by
the Industrial Court vide it's common judgment dated 11.12.2013.
The extensive submissions of Shri Prabhakaran, learned
Advocate for the Petitioners, can be summarized in brief as follows:-
(a) All the lady Petitioners were working as "Aaya" and all the
male Petitioners were working as "Ward Boys".
(b) None of them were deployed through any contractor.
(c) No prayer is made by the Petitioners seeking repudiation of
contract/ contractor.
(d) The Respondent through it's Written Statement has claimed
that all these Petitioners were working as contract labourers.
(e) At no point in time, had any contractor deployed these
Petitioners as contract labourers.
(f) The contention of the Respondent that the Petitioners were
engaged through two contractors, namely, Shri Subhash
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Dhoot and Shri Premchand Kokate, is a false plea.
(g) The contention of the Respondent that the Petitioners were
working in the cleaning / sweeping activity under the
Housekeeping Contract, is a false plea.
(h) The contention of the Petitioners through their evidence that
they were working as Aaya and Ward Boys has not been
denied.
(i) The original identity cards signed by responsible officer of the
Respondent were issued to the Petitioners.
(j) Though it was admitted by the Petitioners in cross-
examination that they are not in employment since 2008,
their claim in the complaints could not be negated on this
count.
(k) Though it is admitted that an appointment order as an Aaya
or Ward Boy was not issued to the Petitioners, their claim of
having actually so worked cannot be negated.
(l) Though the attendance record produced at Exhibit U/38 does
not bear the signature of any responsible officer of the
Respondent, it would indicate that they were working on the
same nature of activity as was being performed by the
regular employees.
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(m) Experience certificates were issued by the Respondent to the
Petitioners.
(n) Separate list for making the payment of wages to the
Petitioners was not maintained.
(o) The Management Witness admitted in his cross-examination
that the contract labourers were doing similar work as was
being done by the permanent employees.
(p) The Industrial Court has erroneously dismissed the
complaints on the ground that it has no jurisdiction merely
because the Respondent has taken a stand of 'no employer-
employee relationship'.
(q) The work of Aaya/ Ward Boy was never contracted by the
Respondent and the defence taken in the Written Statement
was only intended to oust the jurisdiction of the Industrial
Court.
(r) There is no dispute about the nature of work done by the
Petitioners which was similar to the work done by the regular
employees.
(s) There is no cross-examination on the nature of work done by
the Petitioners.
(t) When original identity cards were produced, the same could
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not have been disbelieved.
(u) The inspection carried out by the various officers of the
Labour Department would indicate that the Petitioners were
working on the main activity.
(v) The PF contribution deposited by the Respondent would
indicate the names of the Petitioners.
(w) The Industrial Court has lost sight of the fact that the
Petitioners were doing the same work as like regular
employees, I-Cards were issued identically to all and the PF
contributions were deposited by the Respondent.
(x) The remarks of the Government Labour Officer were ignored
by the Industrial Court.
(y) The Complaints deserve to be remitted back to the Industrial
Court only for the reason that the Industrial Court needs to
adjudicate upon the aspect that the work done by the
Petitioners was never outsourced to a contractor.
(z) It has become a fashion for the employers to cite the
judgments of the Apex Court delivered in the case of Vividh
Kamgar Sabha v/s Kalyani Steels Limited, 2001 (1) CLR 532
and Cipla Limited v/s Maharashtra General Kamgar Union,
2001 LLR 305 so as to oust the jurisdiction of the Industrial
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Court.
(za) The complaints filed by the genuine workers like the
Petitioners have suffered dismissal orders at the hands of the
Labour Courts or the Industrial Courts merely on the basis of
the judgments of the Apex Court in Kalyani Steels (supra)
and Cipla Limited (supra).
8 Shri A.V.Patil with Shri A.R.Joshi, learned Advocates have
opposed these petitions. Their submissions can be summarized as under:-
(a) The judgments of the Apex Court in Kalyani Steels Limited
and Cipla Limited cases (supra) are squarely applicable to
this case.
(b) The work of an Aaya and a Ward Boy, falls under the
category of housekeeping.
(c) The fact that the Petitioners were deployed through
contractors has been brought on record.
(d) When there are disputed questions as regards the employer-
employee relationship, the Industrial Court cannot resort to
investigation in the matter.
(e) The Petitioners were not on the rolls of the Respondent right
from the day they were deployed by the Contractors in the
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housekeeping activity.
(f) The dates of joining of the Petitioners as stated in Annexure A
to the complaints is different from the dates mentioned in the
certificate purportedly issued by the Respondent below
Exhibit U/37.
(g) The signatures on the purported experience certificates are
not in original.
(h) The Experience Certificates are forged documents.
(i) The report of the handwriting expert reflects a different
picture as regards the signatures appearing on the experience
certificates.
(j) Some of the officers whose signatures appear on the
experience certificates, had resigned prior to the dates
mentioned on such certificates.
(k) When none of the Petitioners had filed any application
seeking experience certificate, there was no reason for any
officer of the Respondent to issue such certificate.
(l) The Respondent produced agreements with the Contractors,
payment registers and attendance registers.
(m) Sample bills of the contractors and ledger statements were
also produced.
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(n) Attendance registers of Class III and Class IV workers on the
rolls of the Respondent were produced and which did not
reflect the names of the Petitioners.
(o) In a limited enquiry conducted by the Industrial Court, it has
been sufficiently established that the Petitioners were
deployed through contract labourers.
(p) False attendance sheets were produced by the Petitioners
which do not bear any stamp or signature or any
identification mark of the Respondent.
(q) The attendance record is fabricated.
(r) The Petitioners are not remedy-less as they can raise an
industrial dispute under Section 2A or Section 2(k) of the
Industrial Disputes Act, 1947 for the redressal of their
grievance.
(s) An industrial dispute in this backdrop can be considered by
the appropriate Government and the true employer of the
Petitioners can be identified.
(t) The law as is crystallized would not permit the Industrial
Court to enter into a roving enquiry so as to locate the actual
employer of the Petitioners.
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9 The learned Advocate for the Petitioners has relied upon the
following judgments:-
(a) Hindustan Coca Cola Bottling S/W Private Limited v/s
Bhartiya Kamgar Sena, 2001 (3) CLR 1025.
(b) Bhojraj Tulsiram Gajbhiye v/s All India Reporter Limited,
2009 (4) Bom. C.R. 91.
(c) Akhil Bhartiya Shramik Kamgar Union v/s Buildtech
Constructions, 2004 (Supp.2) Bom.C.R. 857.
10 The learned Advocate for the Respondent has relied upon the
following judgments:-
(a) Regional Manager, Central Bank of India v/s Madhulika
Guruprasad Dahir, 2008 (9) AD (SC) 311 : 2008 (5) AIR
Bom R (SC) 796.
(b) Sanket Food Products Pvt. Ltd. v/s Prabhakar Asaram
Bhalerao, 2014 MCR 661.
(c) Indian Express Limited v/s P.P.Kothari, 2015 (4) AIR Bom R
(d) Managing Director, Epitome Components Ltd. v/s Swarajya
Kamgar Sanghatana, 2015 MCR 614 : 2015(2) AIR BOM R
*14* F-WP56342014.doc
(e) Cipla Limited v/s Maharashtra General Kamgar Union, 2001
LLR 305.
(f) Vividh Kamgar Sabha v/s Kalyani Steels Limited, 2001 (I)
CLR 532.
(g) Sarva Shramik Sangh v/s Indian Smelting and Refining
Company Limited, 2004 (101) FLR 635.
(h) Maharashtra Engineering Plastic and General Kamgar Union
v/s Little Kids and others, 2005 (I) CLR 658.
(i) Hydroflex (India) v/s A.D.Shelar and others, 2005 (I) CLR
(j) Maharashtra State Cooperative Cotton Growers Marketing
Federation Limited v/s Asha Joseph D'Mello, 2008 (116) FLR
(k) Nashik Workers Union, Nashik v/s Mahindra & Mahindra
Limited, Nashik, 2008 (I) LLJ 132.
(l) Sarva Shramik Sangh v/s Janprabha Offset Works, 2008 (I)
LLJ 271.
(m) Bharatiya Kamgar Sena v/s Udhe India Ltd., 2008 (I) LLJ 371
(Bom.) : 2008 (116) FLR 457.
(n) Petroleum Workers Union, Hindustan Petroleum Corporation
Ltd., Chennai v/s Hindustan Petroleum Corporation Ltd.,
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2004 (2) LLN 451.
(o) V.I.P. Industries Limited, Nagpur v/s Athar Jameel and
others, 2010 (II) LLJ 83 (Bom.).
(p) International Airport Authority of India v/s International Air
Cargo Workers' Union, 2009 (123) FLR 321.
(q) General Manager (OSD), Bengal Nagpur Cotton Mills,
Rajnandgaon v/s Bharat Lal and another, 2011 (I) CLR 1.
The issue, therefore, is as to whether, the Industrial Court can
consider disputed questions in the light of the claim of the Petitioners that
they are employed directly by the Respondent/ Management, vis-a-vis the
contention of the Respondent that the Petitioners were deployed through
two Contractors, who were allotted the work of housekeeping.
12 In the Kalyani Steels case (supra) decided by the Apex Court
on 19.01.2001, it has been observed in paragraphs 2, 3, 4, 5, 6 and 7 as
under:-
"2. Briefly stated the facts are as follows:
The Appellants claim to be a Union representing the
workmen of a Canteen run by the Respondents. The
Appellant Union claimed that even though the
Appellants are actually the employees of the
Respondents, the Respondents are not treating them
at par with other employees and have notionally
engaged contractors to run the canteen. As the
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Respondents were not accepting the Appellants'
claim to treat them as their employees, the Appellant
filed a Complaint under Section 28(1) of the
Maharashtra Recognition of Trade Unions &
Prevention of Unfair Labour Practices Act,
1971 (hereinafter called the MRTU & PULP Act)
alleging that the Respondents had engaged in unfair
labour practices under Item Nos. 1, 1(a), 1(b), 4,
4(a) of Schedule II and Items 3, 5, 6, 7, 9 and 10 of
Schedule IV of the MRTU & PULP Act. This
Complaint came to be dismissed by the impugned
Order dated 20th August, 1996.
3. The Appellant Union has filed an SLP directly in this
Court against this Order as the High Court of
Bombay, in the case of Krantikari Suraksha Rakshak
Sangathana v. S. V. Naik reported in (1993) 1 CLR
Page 1002, has already held that the Industrial Court
cannot in a complaint under MRTU & PULP Act
abolish contract labour and treat employees as direct
employees of the company.
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.
6. Faced with this situation it was submitted that the
Respondent Company had always recognised the
members of the Appellant Union to be their own
workmen. It is submitted that a formal denial was
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taken only to defeat the claim. We see no substance in
this submission. In the written statement it has
been categorically denied that the members of the
Appellant 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 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.
7. Accordingly, we dismiss this Appeal on the ground
that the complaint was not maintainable. We clarify
that it is open for the Appellant or their members to
raise dispute in this behalf before an appropriate
forum provided they are entitled to do so. If they
get a declaration to the effect that they are employees
of the Respondent Company, then it may be open to
them to file such a complaint. It is also clarified that
if a dispute as to their status is raised in an
appropriate forum then the same will be decided on
merits without taking into consideration any
observations made or finding given by the Industrial
Court in the impugned Order."
13 The Apex Court, in Kalyani Steel's Case (supra) has
considered the ratio laid down in the Krantikari Suraksha Case (supra)
and the Red Flag case (supra) and held that when the workmen have not
been accepted by the Company to be it's employees, a complaint under
the ULP Act would not be maintainable before the Labour or Industrial
Court. In the Kalyani Steels Case (supra), the Apex Court concluded that
the Industrial Court had given a finding on facts that the members of the
Union were not employees of the Respondent Company. If this question
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was to be decided, the Industrial Court was not the proper forum.
14 In the Cipla Limited case (supra), the Apex Court has
observed in paragraphs 3, 5, 6, 7, 8 and 9 as under:-
"3. The Labour Court on the basis of these pleadings
framed the following issues:-
1. Does the complainant prove that the company
indulged in unfair labour practices as alleged ?
2. -----deleted----
3. Does he prove that he is entitled the relief as
prayed for?
4. What order ?
Additional Issues:-
3A. Whether the complaint is maintainable?
3B. Whether the complainant prove that the names
in Annexure A are the workmen of the Respondent
No.1?
3C. Whether this Court has jurisdiction to
entertain the complaint?
4. .......
5. After further examination, it was held that the
arrangement between the appellant and the second
respondent can only be termed as legal and bona
fide and hence the matter of abolition of contract
labour in the process of house-keeping and
maintenance of the premises of the factory can be
agitated only under the provisions of Contract Labour
(Regulation and Abolition) Act, 1970. Therefore, the
Labour Court dismissed the complaint filed by the
first respondent-Union. When the matter was carried
by revision under the Act the Industrial Court
dismissed the revision application by reiterating the
views of the Labour Court.
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6. In the writ petition the Division Bench of the High
Court took a different view of the matter and
allowed the complaint. Before the High Court several
decisions were referred to including the decision of
this Court in General Labour Union (Red Flag),
Bombay v. Ahmedabad Mfg. & Calico Printing Co.
Ltd & Ors., 1995 Supp. (1) SCC 175. In that case
the complaint of the Union was that 21 workmen
who were working in one of the canteens of the
respondent-company were not given the service
conditions as were available to the other workmen of
the company and there was also a threat of
termination of their services. This Court proceeded
to consider the case on the basis that their complaint
was that the workmen were the employees of the
company and, therefore, the breach committed and
the threats of retrenchment were cognizable by
the Industrial Court or the Labour Court under the
Act. Even in the complaint no case was made out
that the workmen had ever been accepted by the
company as its employees. On the other hand, the
complaint proceeded on the basis as if the workmen
were a part of the work force of the company. This
Court noticed that the workmen were never
recognised by the company as its workmen and it
was the consistent contention of the company that
they were not its employees. In those circumstances,
the Industrial Court having dismissed the complaint
and the High Court having upheld the same, this
Court stated that it was not established that the
workmen in question were the workmen of the
company and in those circumstances, no complaint
could lie under the Act as was held by the two
courts. In that case it was the admitted position that
the workmen were employed by a contractor, who
was given a contract to run the canteen in
question. Thereafter, the High Court adverted to the
decision of this Court in Gujarat Electricity Board,
Thermal Power Station, Ukai, Gujarat v. Hind
Mazdoor Sabha & Ors., 1995 (5) SCC 27, wherein it
was noticed that the first question to be decided
would be whether an industrial dispute could be
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raised for abolition of the contract labour system in
view of the provisions of the Act and, if so, who can
do so. The High Court was of the view that
the decision in General Labour Union (Red Flag),
Bombay v. Ahmedabad Mfg. & Calico Printing Co.
Ltd & Ors. (supra) would make it clear that such a
question can be gone into and that the observations
would not mean that the workmen had to establish
by some other proceedings before the complaint is
filed or that if the complaint is filed, the moment
the employer repudiates or denies the relationship of
employer and employees the court will not have any
jurisdiction. The observation of this Court that it is
open to the workmen to raise an appropriate
industrial dispute in that behalf if they are entitled
to do so has to be understood in the light of the
observations of this Court made earlier. The High
Court further held that the judgment in General
Labour Union (Red Flag), Bombay v. Ahmedabad
Mfg. & Calico Printing Co. Ltd & Ors. (supra)
was confined to the facts of that case. On that basis
the High Court proceeded to further consider the
matter and reversed the findings recorded by the two
courts and gave a finding that the workmen in
question are the workmen of the appellant-
company.
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
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
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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,
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
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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 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
*23* F-WP56342014.doc
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."
15 It has, therefore, been held by the Apex Court that in such
cases where the Employees contend that the Employer has taken a false or
bogus stand of denying employer-employee relationship, the issue will
have to be adjudicated upon by an appropriate forum which is not the
Labour or Industrial Court under the ULP Act.
16 In the Indian Smelting Case (supra), the Apex Court once
again considered a similar controversy and has observed in paragraphs 7,
8, 9 and 10 as under:-
"7. On the merits of the contentions raised on behalf of
the appellants while reiterating the plea that the
*24* F-WP56342014.doc
principles laid down in CIPLA's case (supra) are
unexceptionable and well merited having regard to
the scheme, purpose and object of the legislations
under consideration and legislative intent as expressed
in the language of the various provisions therein and
do not call for any reconsideration, merely because
there was no reference to a particular provision or
other, wherein according to the respondents all
relevant principles and criteria necessary for the
purpose have been found effectively kept into
consideration. According to the respondents the scope
for the Maharashtra Act is limited in nature and
confined to consideration of claims and grievances of
unfair labour practices of certain kind by prohibiting
employer or union and employees from engaging in
any unfair labour practice and the existence of an
undisputed or indisputable relationship of employer-
employee is an essential pre-requisite for the labour or
Industrial Court under the Maharashtra Act to
entertain any proceedings in respect of any grievance
under the said Act. Section 32 of the Maharashtra
Act, it is urged is to be considered in the context of
Sections 26 and 27 read with the relevant entries in
the Schedules in these cases, particularly items 5, 6,
9 & 10 and in the absence of accepted or existing
relationship of employer-employee duly declared in
competent proceedings, neither Section 5 nor Section
7 or even Section 28 enabled a complaint to be
entertained for consideration of such grievances as are
sought or permitted to be agitated under the
Maharashtra Act.
8. The further plea on behalf of the respondents was that
the scope of adjudication under the ID Act is much
wider in which all or any types and nature of
industrial disputes including claims for declaration of
status or relationship of "Master and Servant or
Employer and Employee" can also be agitated and
determined and not under the Maharashtra Act.
Consequently, it is claimed that questions as to
whether the contract under which contract labour
was engaged was a sham and nominal or a mere
*25* F-WP56342014.doc
camouflage and if so whether by piercing the veil they
should be declared to be really the employees of the
principal employer are matters which could be got
referred to for adjudication by seeking a reference
under ID Act only and are totally outside the
jurisdiction of the Courts constituted under the
Maharashtra Act.
9. The decision of the Constitution Bench in Steel
Authority of India Ltd. and Ors. v. National Union
Waterfront Workers and Ors. (2001 (7) SCC 1) in
several paragraphs particularly paras 65, 108, 112,
113, 117, 125 makes the position clear that a dispute
of the nature previously projected has perforce to be
adjudicated on the issue as to whether a person was a
workman under the employer.
10. The relevant paragraphs so far as relevant read as
follows:-
"65. The contentions of the learned counsel for the
parties, exhaustively set out above, can conveniently
be dealt with under the following two issues :
A. Whether the concept of automatic
absorption of contract labour in the establishment of
the principal employer on issuance of the abolition
notification, is implied in Section 10 of the CLRA Act;
and
B. Whether on a contractor engaging
contract labour in connection with the work entrusted
to him by a principal employer, the relationship of
master and servant between him (the Principal
employer) and the contract labour, emerges.
108. The next issue that remains to be dealt
with is :
B. Whether on a contractor engaging
contract labour in connection with the work entrusted
to him by a principal employer, the relationship of
master and servant between him (the principal
employer) and the contract labour emerges.
112. The decision of the Constitution Bench of
this Court in Basti Sugar Mill's case (supra), was
*26* F-WP56342014.doc
given in the context of reference of an industrial
dispute under the Uttar Pradesh Industrial Disputes
Act, 1947. The appellant-Sugar Mills entrusted the
work of removal of press-mud to a contractor who
engaged the respondents therein (contract labour) in
connection with that work. The services of the
respondents were terminated by the contractor and
they claimed that they should be reinstated in the
service of the appellant. The Constitution Bench held
(AIR p. 357, para 7 :
"The words of the definition of workmen in
Section 2(z) to mean "any person (including an
apprentice) employed in any industry to do any
skilled or unskilled, manual, supervisory, technical or
clerical work for hire or reward, whether the terms of
employment be express or implied" are by themselves
sufficiently wide to bring in persons doing work in an
industry whether the employment was by the
management or by the contractor of the management.
Unless however the definition of the word "employer"
included the management of the industry even when
the employment was by the contractor the workmen
employed by the contractor could not get the benefit
of the Act since a dispute between them and the
management would not be an industrial dispute
between "employer" and workmen. It was with a view
to remove this difficulty in the way of workmen
employed by contractors that the definition of
employer has been extended by sub-clause (iv) of
Section 2(i). The position thus is : (a) that the
respondents are workmen within the meaning of
Section 2(z), being persons employed in the industry
to do manual work for reward, and (b) they were
employed by a contractor with whom the appellant
company had contracted in the course of conducting
the industry for the execution by the said contractor
of the work of removal of press-mud which is
ordinarily a part of the industry. It follows therefore
from Section 2(z) read with sub-clause (iv) of Section
2(i) of the Act that they are workmen of the appellant
company and the appellant company is their
employer."
*27* F-WP56342014.doc
113. It is evident that the decision in that case
also turned on the wide language of statutory
definitions of the terms "workmen" and "employer". So
it does not advance the case pleaded by the learned
counsel.
117. We find no substance in the next
submission of Mr. Shanti Bhushan that a combined
reading of the definition of the terms contract labour,
establishment and workman would show that a legal
relationship between a person employed in an
industry and the owner of the industry is created
irrespective of the fact as to who has brought about
such relationship.
125(5). On issuance of prohibition notification
under Section 10(1) of the CLRA Act prohibiting
employment of contract labour or otherwise, in an
industrial dispute brought before it by any contract
labour in regard to conditions of service, the
industrial adjudicator will have to consider the
question whether the contractor has been interposed
either on the ground of having undertaken to produce
any given result for the establishment or for supply of
contract labour for work of the establishment under a
genuine contract or is a mere ruse camouflage to
evade compliance of various beneficial legislations so
as to deprive the workers of the benefit thereunder. If
the contract is found to be not genuine but a mere
camouflage, the so-called contract labour will have to
be treated as employees of the principal employer who
shall be directed to regularise the services of the
contract labour in the concerned establishment subject
to the conditions as may be specified by it for that
purpose in the light of para 6 hereunder."
17 This Court has considered the law as laid down by the Apex
Court in the above referred cases and has concluded in paragraphs 5 and
6 of it's judgment in the case of Maharashtra Engineering Plastic and
General Kamgar Union (supra) as under:-
*28* F-WP56342014.doc
"5. At the hearing of this petition, on behalf of the
Petitioners, their learned counsel points out that the
judgment in Kalyani (supra) and Cipla Ltd. V.
Maharashtra General Kamgar Union and ors. 2001 1
CLR 754 would not be attracted to the facts of the
present case. It is pointed out that in both the cases
admittedly relationship of employer and employee
was with another employer. In the case of Kalyani
(supra) the Canteen workers claimed to be direct
workmen though they were employed in the canteen
by the contractor. Similarly in Cipla, admittedly the
complaint was filed contending that the contract was
sham and bogus and that the employees were direct
employees of Cipla. It is therefore, submitted that
these judgments would not apply on the fact of the
present case where the complainants had contested
that respondents are their workmen. Merely denial
would not be sufficient. It was open to the
complainant to produce evidence and in fact there
was prima facie evidence to establish relationship of
employer and employee and in these circumstances,
the order of the Labour Court ought to be set aside. It
is secondly submitted that the workman who was
examined by the complainant union was one of those
who admittedly was admitted by the respondent to be
their workman though his name was not listed in
ESIS records. The workman had deposed that he was
working along with other 16 workmen whose names
were listed in the complaint. Prima facie there was
therefore, sufficient material and in the light of that,
the learned Labour Court ought not to have
proceeded to dispose of the issues without recording
further evidence. It is submitted that petitioners did
not have a fair opportunity of leading evidence.
On the other hand, on behalf of the
Respondents, their learned counsel submits that the
complainants are not sure as to who is their employer
considering the pleadings of the respondents
themselves in the complaint and thereafter in the
affidavit in rejoinder filed on behalf of the Respondent
Nos. 1 and 2. It is pointed out that no material had
been brought on record whatsoever to show any
*29* F-WP56342014.doc
relationship between Respondent no. 1 and M/s.
Dinesh Fashions or for that matter with M/s. Teenage
Fashions. Considering the contention of the
complainant themselves that the workmen were
working for both the units, it is contended that it
cannot be said that the findings recorded by the
learned Labour Court suffers from any error.
6. With the above, we may first consider whether on the
plea by the employer that the persons claimed to be
workmen are not his workmen the complaint under
the provisions of the MRTU & PULP Act is not
maintainable and the remedy of such persons is to
approach Industrial Tribunal on a reference by the
appropriate Government. We may firstly consider the
judgment in Kalyani and another. The learned Apex
Court has been pleased to observe that the provisions
of MRTU & PULP Act can only be enforced by persons
who admittedly are workman. If there is dispute as to
whether employees are employees of the company,
then that must be got resolved by raising dispute
before the appropriate forum. It is only after a proper
forum decides the status will an application be
maintainable under the provisions of M.R.T.U.&
P.U.L.P. Act. The Judgment came to be delivered on
19.1.2001.
The matter once came up before the Apex Court
in Cipla Ltd. V. Maharashtra General Kamgar Union
and Ors, 2001 1 CLR 754. That was the case
admittedly of Contractor and employees. The
contention of the Union was that the contract was
sham and consequently they were direct employees of
the appellant before the Apex Court. This view found
favour with the Division Bench of this Court. The
Apex Court observed that the case put forth by the
workman is that they have been directly employed by
the appellant company. That the contract itself is
sham and therefore, needs to be adjudicated. It is a
matter which can be gone into by Industrial Court or
the Labour Court. The said question cannot be
examined by the Labour Court constituted under the
Act. The Apex Court then observed that the object of
the enactment is, amongst other aspects, enforcing
*30* F-WP56342014.doc
provisions relating to unfair labour practice. 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 court then noted that 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. The court held 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
Industrial Disputes Act.
Subsequent to these judgments several
judgments of the learned Single Judges of this Court
came to be considered in Hindustan Coca Cola
Bottling S/W pvt. Ltd. and anr. V. Narayan Rawal
and Ors. 2001 II CLR 380. By considering the
judgment in Kalyan Steel (supra) and in Cipla
(supra) the learned Division Bench of this court held
that if the relationship of employer and employee is
established before the Industrial Tribunal or Labour
Court under the Industrial Disputes Act or the
employee/employer relationship is undisputed or
indisputable, then the complaint under M.R.T.U. &
P.U.L.P. Act would be maintainable. The court
hastened to add that if any time the employee was
recognised by the employer and subsequently
repudiated such question would be incidental
question arising under Section 32 of the Act and the
Labour Court and the Industrial Court as the case
may be is bound to decide the said question. However,
in the case where the complaint is filed that
employees of the contractors are direct employees of
the Employer the court constituted under Section 28
of the MRTU Act will have no jurisdiction to entertain
the complaint unless status of relationship gets
determined in the proceedings under the Industrial
Disputes Act.
From the above it will therefore, be clear that
*31* F-WP56342014.doc
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
M.R.T.U. & P.U.L.P. 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."
18 Similar view has been taken by this Court in the case of
Hydroflex India (supra), Asha Joseph D'Mello (supra), Mahindra &
Mahindra Limited (supra), Janprabha Offset (supra) and VIP Industries
Limited (supra).
19 The Petitioners have placed reliance on the judgment of this
Court (Division Bench) in the case of Hindustan Coca Cola (supra).
Paragraph 8 of the judgment which is pointed out, reads as under:-
"8. Mr.Cama also drew our attention to an unreported
decision of the learned single Judge of this Court
(Khandeparkar, J.) in Indian Seamless Metal Tubes
Limited v. Sunil Iwale and Ors., Writ Petition No.
1433 of 2000 decided on 5th July, 2001. In that case
the learned Judge has not agreed with the view taken
by Kochar, J. in the present case and held that in view
*32* F-WP56342014.doc
of the decisions of the Supreme Court in Cipla Ltd.
and Kalyani Steels Ltd. that only precondition to seek
remedy under the MRTU & PULP Act is necessity of
existence of employer-employee relationship between
the parties and when its existence is not already
established or is disputable, the party has to first seek
relief under the Central Act i.e. the Industrial Disputes
Act or the Bombay Act i.e. the Bombay Industrial
Relations Act, and if successful therein to seek remedy
under the said Act thereafter. We are in agreement
with the observations of the learned Single Judge but
with a 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 & PULP Act.
In his judgment Khandeparkar, J. has referred
to a judgment of another single Judge Rebello, J. in
Writ Petition No.1365 of 2001, Raigad Mazdoor
Sangh v. Vikram Bapat. Rebello, J. has, inter alia,
held that while deciding the question of
maintainability of the complaint under MRTU &
PULP Act, the Industrial Court is bound to frame an
issue as a preliminary issue on that count and after
framing the preliminary issue decide the point of
jurisdiction. Khandeparkar, J. has, however,
disagreed with this view and held that the question of
framing such issue does not arise if on a perusal of the
complaint under the MRTU & PULP Act it is found
that there is no jurisdiction to try the complaint. He
observed :
"20. It was also sought to be contended that
mere denial of status of the complainant as that of
employee by the opponent, cannot non-suit the
employees and such denial would not oust the
jurisdiction to the Industrial Court to ascertain the
fact situation by framing issues and asking the parties
to lead evidence in that regard, and to decide the
same, possibly by summary manner. In fact, similar
was the contention sought to be raised in Vividh
Kamgar Sabha's case by saying that such denials can
be raised in each and every case to defeat the claim of
*33* F-WP56342014.doc
the employee, the contention was rejected by the Apex
Court. Indeed, a question of framing of issue or
holding of summary inquiry does not arise at all.
Once, it is clear that the 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-employees 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 the Industrial Court to adjudicate upon
the issue of such relationship would amount to
mistake of fact in relation to jurisdiction."
We are in respectful agreement with the above
view expressed by Khandeparkar, J. If, on a 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 the employer/employee relationship,
it cannot assume jurisdiction to entertain the
complaint and the complaint will have to be dismissed
as not maintainable.
In the light of the foregoing discussion, we have
no hesitation in holding that in the instant case
complaints filed by the Union and the employees are
not maintainable and the Industrial Court has no
jurisdiction to try these complaints." (Emphasis is mine).
20 It is quite obvious that the consistent view in such
circumstances has been that unless employer-employee relationship was
recognized at some stage in between the litigating sides and it has then
*34* F-WP56342014.doc
been disputed only to oust the jurisdiction of the Court, there cannot be
an ouster of jurisdiction.
21. The contention of the Petitioners in the case on hand is that the
work of Aaya and Ward Boy was never performed through contract
labourers. However, the Petitioners have not produced any evidence
which would indicate that, at some point in time, there was a direct
relationship and which was recognized in between the Petitioners and the
Respondent. Identity Cards cannot be indicative of such a relationship
since an identity card is not the decisive/ determinative piece of evidence
of an employer-employee relationship. It is an admit card on the strength
of which regular employees as well as contract labourers are permitted to
enter the premises of the Respondent. So also, the identity cards could not
be proved by the Petitioners before the Industrial Court to be genuine
documents.
22 It cannot be overlooked that the Respondent has brought
voluminous record before the Industrial Court which has considered the
oral and documentary evidence after framing preliminary issues. It may
eventually appear that the housekeeping activity may not include the
work of an Aaya or Ward Boy or it may also turn out that there was no
*35* F-WP56342014.doc
valid licence and registration for deploying Aaya and Ward Boys in the
housekeeping area, under the Contract Labour (Regulation and Abolition)
Act, 1970 (herein after referred to as "the CLRA Act"). However, this
investigative exercise cannot be undertaken by the Industrial Court.
23 The Petitioner has relied upon the following observations of
this Court in the case of Bhojraj Tulsiram Gajbhiye (supra):-
"He also makes a reference to Hindustan Coca
Cola Bottling Vs, Bhartiya Kamgar Sena reported in
2002 (3) Bom. C.R. 129 (O.S.) : 2001(III) CLR
1025. Next Division Bench decision to which reference
is made is reported in 2005 (1) Bom.C.R. 759
(O.S.) : 2004 LIC 3789 (M/s Quadricon Pvt. Ltd. Vs.
Maxi D'Souza and Others). Dharmadhikari J. in
M.I.D.C. case finally observes after taking stock of
these decisions as follows:
"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
*36* F-WP56342014.doc
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 employees 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 AIR 2004 SC 1639 between Workmen of
Nilgiri Cooperative Marketing Society Vs. State of
Tamil Nadu and 2004(1) SCC 126 : AIR 2004 SC
*37* F-WP56342014.doc
969 between Ramsingh Vs. 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 supervisions; (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 enquiry into a disputes 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." (Emphasis is mine).
24 Even going by the ratio laid down in the above stated case, I
do not find that the Petitioners appear to sustain the test of who is the
appointing authority, who is the pay master, who can dismiss, etc..
*38* F-WP56342014.doc
25 So also, there was nothing before the Industrial Court to
indicate that the Respondent had earlier accepted employer-employee
relationship with the Petitioners so as to be construed that the defence of
the Respondent in the Written Statement is a malafide and a vexatious
defence.
26 The ratio laid down by this Court in Buildtech Constructions
case (supra) is of no assistance to the Petitioners since in the instant case
and unlike in the Buildtech Case, the Respondent has produced evidence
to indicate that the Petitioners were neither appointed by the Respondent
nor are the Petitioners directly paid wages by the Establishment.
27 For the sake of clarity, it needs to be noted that the CLRA Act,
1970 and the Rules thereunder are aimed at regulating the deployment of
contract labourers. If the contract labourers are performing work similar
to the work performed by the regular employees, their wage structure has
to be similar. The contractor has to pay wages directly to the contract
labourer, but in the presence of a representative of the Principal
Employer. The contractor has to raise a bill for service charges and the
wages of the labourers are paid from such payments made by the
*39* F-WP56342014.doc
Principal Employer to the contractor. If the contractor does not deposit
the PF contributions, the Principal Employer is mandated to pay the same.
Issuance of identity cards/ admit cards would not mean that a direct
relationship is established between the labourers and the Principal
Employer. Abolition of contract labour system by the competent authority
does not lead to the automatic absorption of the contract labourers in the
service of the Principal Employer.
The Apex Court, in the case of International Airport Authority
of India case (supra), has concluded in paragraph 27 as under :-
"27. The last finding is that there were three indicators to
show that contract labour for loading/unloading were
direct employees of IAAI : direct payment of wages,
direct penal action by IAAI against the contract
labour, and direct control and supervision of contract
labour by IAAI. Therefore, the contracts for supply of
contract labour were `paper' contracts and a
camouflage to deny benefits of labour laws to the
members of first respondent Union.
We will first examine whether there was any
material at all to hold that the wages were being
directly paid by IAAI to the contract labour. The
contracts between IAAI and the society make it crystal
clear that a lump sum consideration was to be paid by
the IAAI to the society and the society was responsible
for payment to its members who were send as
contract labour. The workers did not produce any
document to show that the payment was made by
IAAI directly to the workers. But The Tribunal
wrongly held that Ex. W-1 to W-6 showed that the
payment was directly made. Ex. W-1 is an
appointment letter dated 31.1.1978 issued to one
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Godaraman by Airfreight. Ex.W-2 dated 31.10.1983
is a pay-slip of one D. Natarajan issued by Airfreight.
Both these documents relate to the period prior to
31.10.1985 when the workers were the permanent
employees of Airfreight, and had absolutely no
connection with IAAI. Ex.W-3 dated 18.4.1988 is a
cash receipt for payment of ex-gratia amount paid to
cargo loaders for the period 22.3.1986 to 9.5.1986
and 17.5.1986 to 23.5.1986. It shows that a sum of
Rs.7,267.20 was paid as ex gratia amount. Though
the said receipt is dated 18.4.1988, it clearly shows
that the payment related to the work done between
22.3.1986 to 9.5.1986 and 17.5.1986 to 23.5.1986
when, admittedly, these workers were direct casual
daily wage employees under IAAI and when the
contract between IAAI and the society had not even
come into existence. The contract labour arrangement
admittedly came into existence only from 1.7.1986.
This document has, therefore, no relevance to show
that any payment was made to the contract labour
directly. Ex.W-4 is a Circular dated 18.2.1986 of IAAI
notifying that wages of 82 loaders mentioned therein
had been drawn from 1.1.1986 to 31.1.1986 and
directed the said daily wage labourers to receive their
wages immediately. This again is of no relevance as it
related to the period prior to the contract labour
agreement when the workers were working as casual
daily wage employees directly under the IAAI. Ex.W-5
is the pay-slip of one S.C. Yadav for May, 1990 who
was working in the Bombay Airport and Ex. W-6 is a
pay-slip of one Aseem Das, Cargo Loader for June,
1990 who was working in the Calcutta Airport. These
two documents were produced only to show that the
IAAI had employed some persons as direct labour in
its cargo department in Calcutta and Bombay
Airports and had nothing to do with the workers who
were working at Madras. On the basis of these
documents, the Tribunal has held that payments were
being directly made to workers when they were
contract labours. This is a finding based on absolutely
no evidence and shockingly perverse and is liable to be
rejected accordingly.
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The Tribunal held that IAAI was taking penal
and disciplinary action by suspending and punishing
the contract labour and that was proof of direct
employment. This finding is also based on no
evidence. Not even a single document was produced to
show that any notice of suspension or show cause
notice for disciplinary action or order imposing
punishment was passed by IAAI in regard to any of
the contract labour. Reliance was placed on Ex.W10,
M-15 to M-17, M-21, M-23 as also M2, 24 to 31 and
34 to 40 to prove that IAAI was directly taking action
against the contract labour. None of them is relevant.
Ex.W-10 is a letter dated 7.3.1990 from IAAI to the
society, stating that one Ram Chander, loader-cum-
packer had given an assurance to work in a
disciplined manner and therefore it was decided to
allow him to work. This is not a communication
addressed to the contract labour but to the society
informing the society that Ram Chander may be
permitted to work in view of his assurance to behalf
properly. M-15 to M-17 are 3 letters dated 9.3.1987,
16.6.1988 and 11.6.1990 addressed by IAAI to the
society regarding the allotment of contract labour and
their identification. Ex.M-21 is a letter dated
20/22.2.1991 from IAAI to the society for supply of
contract labour. Ex.M-23 is a letter dated 14.5.1991
from IAAI to the society regarding duty roster.
Ex.M24 is a letter dated 2.12.1987 from IAAI to the
society informing that there is no improvement in the
attendance of the contract labour, and requesting the
society to take necessary action to improve their
attendance. Ex.M25 to 31 and 34 to 40 are letters
complaining about pilferage and other irregularities
committed by the contract labour noticed by security
personnel. These letters give the particulars of the
irregularities committed and inform the society not to
send them to work pending investigation. None of
them relates to imposition of punishment by IAAI as
employer against any employee. These are merely
communications informing the contractor society that
some of the contract labour provided by it were guilty
of some illegal acts and therefore directing the
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contractor not to send those employees. This was
expressly provided for in clauses 20 and 25 of the
Contract Labour Agreement. Thus, none of these
documents is evidence of any penal or disciplinary
action by IAAI against the contract labour.
The next ground referred is that the contract
labour were working under the direct supervision and
control of officers of IAAI. This is not in fact disputed.
The contract labour were engaged in handling cargo,
that is loading, unloading and movement of cargo in
the Cargo Complex of IAAI. Naturally, the work had
to be done under the supervision of the officers of
IAAI. Merely because the contract labour work is
under the supervision of the officers of the principal
employer, it cannot be taken as evidence of direct
employment under the principal employer. Clause 17
of the Contract Agreement required a supervisor to be
employed by the society also. Exercise of some control
over the activities of contract labour while they
discharge their duties as labourers, is inevitable and
such exercise is not sufficient to hold that the contract
labour will become the direct employees of the
principle employer.
It is thus seen that all the three grounds
mentioned by the Tribunal and which have found
favour with the Division Bench as indicators of direct
employment by IAAI and the contract labour
agreement with the society being a camouflage, are
wholly baseless." (Emphasis is mine).
29 As such, merely because there was supervision by the
representative of the Principal Employer on the work activities of the
contract labourers would not tantamount to the labourers being the
employees of the Principal Employer.
30 The Apex Court in the case of General Manager (OSD),
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Bengal Nagpur Cotton Mills case (supra) has held in paragraphs 8 and 9
as under:-
"8. In this case, the Industrial adjudicator has granted
relief to the first respondent in view of its finding that
he should be deemed to be a direct employee of the
appellant. The question for consideration is whether
the said finding was justified. It is now well-settled
that if the industrial adjudicator finds that contract
between the principal employer and contractor to be
sham, nominal or merely a camouflage to deny
employment benefits to the employee and that there
was in fact a direct employment, it can grant relief to
the employee by holding that the workman is the
direct employee of the principal employer. Two of the
well-recognized tests to find out whether the contract
labour are the direct employees of the principal
employer are (i) whether the principal employer pays
the salary instead of the contractor; and (ii) whether
the principal employer controls and supervises the
work of the employee. In this case, the Industrial
Court answered both questions in the affirmative and
as a consequence held that first respondent is a direct
employee of the appellant.
9. On a careful consideration, we are of the view that
the Industrial Court committed a serious error in
arriving at those findings. In regard to the first test as
to who pays the salary, it placed the onus wrongly
upon the appellant. It is for the employee to aver and
prove that he was paid salary directly by the principal
employer and not the contractor. The first respondent
did not discharge this onus. Even in regard to second
test, the employee did not establish that he was
working under the direct control and supervision of
the principal employer. The Industrial Court
misconstrued the meaning of the terms `control and
supervision' and held that as the officers of appellant
were giving some instructions to the first respondent
working as a guard, he was deemed to be working
under the control and supervision of the appellant.
The expression `control and supervision' in the
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context of contract labour was explained by this court
in International Airport Authority of India v.
International Air Cargo Workers Union [2009 (13)
SCC 374] thus:
"If the contract is for supply of labour,
necessarily, the labour supplied by the contractor will
work under the directions, supervision and control of
the principal employer but that would not make the
worker a direct employee of the principal employer, if
the salary is paid by contractor, if the right to
regulate employment is with the contractor, and the
ultimate supervision and control lies with the
contractor.
The principal employer only controls and
directs the work to be done by a contract labour,
when such labour is assigned/allotted/sent to him.
But it is the contractor as employer, who chooses
whether the worker is to be assigned/allotted to the
principal employer or used otherwise. In short,
worker being the employee of the contractor, the
ultimate supervision and control lies with the
contractor as he decides where the employee will work
and how long he will work and subject to what
conditions. Only when the contractor assigns/sends
the worker to work under the principal employer, the
worker works under the supervision and control of
the principal employer but that is secondary control.
The primary control is with the contractor."
Therefore we are of the view that the Industrial
Court ought to have held that first respondent was
not a direct employee of the appellant, and rejected
the application of the first respondent."(Emphasis is mine).
31 Insofar as the visit of the Government Labour Officer is
concerned, it is noteworthy that the visit was under the CLRA Act. His
conclusion as regards payment of wages is also under the CLRA Act. If the
Petitioners were the direct employees of the Principal Employer and were
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not contract labourers deployed by the contractor, I find no reason for
these Petitioners to have approached the Labour Officer for making a
statement to be recorded under the CLRA Act.
32 I have no reason to accept the contention of the Petitioners
that the attendance record is a genuine document which is compilation of
sheets of papers without any stamp or letter head or name of the
establishment and without any signature of the officer concerned.
33 Considering the totality of the evidence before the Industrial
Court, I find that the Respondent has taken a stand that the Petitioners
were deployed as Aaya / Ward Boy under the housekeeping activity and
the same was outsourced through a contractor. The submission of the
Petitioner that the work of Aaya / Ward Boy is not outsourced and was
never performed by any contractor, is in itself a contention aimed at
repudiating/ disputing the existence of a contractor who is said to have
deployed the Petitioners in the Respondent Establishment.
34 In the light of the above, I do not find that the impugned
judgment of the Industrial Court in the Complaints filed by the Petitioners
could be termed as being perverse or erroneous. In view of the ratio laid
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down by the Apex Court regarding the scope of the jurisdiction of this
Court, in the case of Syed Yakoob v/s K.S.Radhakrishnan reported in AIR
1964 SC 477 and Surya Dev Rai v/s Ram Chander Rai reported in AIR
2003 SC 3044, I am of the view that grave injustice is not caused to the
Petitioners by the impugned judgment. They are not rendered remedy-less
as the Apex Court in Kalyani Steels Limited and Cipla Limited judgments
(supra) has laid down the law that the contract labourers like the
Petitioners can raise an industrial dispute for the redressal of their
grievance and for obtaining a declaration that the Principal Employer is
the real employer. The Petitions are, therefore, dismissed.
35 In the event, the Petitioners raise an industrial dispute before
the appropriate Government under the Industrial Disputes Act, 1947
within a period of SIX WEEKS from today, the time spent by the
Petitioners before the Industrial Court and this Court shall be a ground for
condonation of delay, if any. All contentions of the litigating sides are,
therefore, kept open. In the event, the appropriate Government refers the
dispute to the appropriate Court/ Tribunal, the said reference shall be
decided on it's own merits and the concerned Tribunal shall not be
influenced by the observations of the Industrial Court in the impugned
judgment as well as the observations of this Court.
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36 Rule is, therefore, discharged.
37 No order as to costs.
(RAVINDRA V. GHUGE, J.)
