Konkan Agro Marine Industries Pvt ... vs Akhil Maharashtra Akyavardhak ...
2016 Latest Caselaw 6771 Bom

                                             1




                                                                                
         \IN THE HIGH COURT OF JUDICATURE OF BOMBAY                                    
                       BENCH AT AURANGABAD




                                                        
                            WRIT PETITION NO.9432 OF 2016

    M/s Konkan Agro Marine Industries
    Pvt.Ltd., Babargaon, Tal.Gangapur,




                                                       
    Dist.Aurangabad, Through its Factory
    Manager                                                  - PETITIONER 

    VERSUS




                                            
    Akhil Maharashtra Akyavardhak
    Sarva Shramik Sanghatana, 
    Arunodaya Niwas, Plot No.191/192,
    Galnimb, Tal.Gangapur,
    Dist.Aurangabad                                          - RESPONDENT 

Mr.S.V.Dankh, Advocate for the petitioner.

Mr.M.S.Indani, Advocate for the respondent.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 29/11/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner has challenged the order dated 26/06/2013

passed by the Labour Court in Complaint (ULP) No.9/2005 thereby

concluding that it had jurisdiction to entertain the complaint as

there is an employer-employee relationship between the petitioner

and the respondent/workers. The petitioner is also aggrieved by the

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judgment of the Industrial Court dated 28/06/2016 by which

Revision (ULP) No.63/2013 has been dismissed.

3. I have heard the strenuous submissions of Mr.Dankh, learned

Advocate for the petitioner and Mr.Indani, learned Advocate for the

respondent/Union. With their assistance, I have gone through this

voluminous petition paper book running into 1048 pages.

4. Considering the order that I intend to pass in the light of the

judgment delivered by the Hon'ble Supreme Court in the matter of

Vividh Kamgar Sabha Vs. Kalyani Steels Limited, reported in 2001[1]

CLR, page 532 (paragraph 5) and Cipla Limited Vs. Maharashtra

General Kamgar Union, reported in 2001 LLR page 305 = 2001(2)

Bom.C.R. (S.C.) 822 : (2001) 2 SCC 381 (paragraph Nos. 8 and 9), I

am not required to advert to their entire submissions.

5. There is no dispute that in an earlier round of litigation, the

Industrial Court, by its judgment dated 14/10/2011 in Revision (ULP)

No.8/2010 filed by the petitioner herein, had directed the Labour

Court to frame a preliminary issue as regards jurisdiction in the light

of the contention of the petitioner that there is no employer-employee

relationship between the petitioner/Management and the employees

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represented by the respondent/Union. Said judgment has attained

finality and neither of the parties can be permitted to go into the

validity of the said judgment.

6. The respondent/Union has filed Complaint (ULP) No.9/2005

before the Labour Court alleging illegal termination amounting to

retrenchment. It is specifically stated in paragraph No.4 of the

complaint that the employees (63 in number) have been terminated

on a single day which is 29/11/2004. Their designation, dates of

joining, wages drawn and the date of termination have been

specifically set out in the body of the complaint. Their prayer in the

complaint is that their illegal termination be set aside and they

should be reinstated with continuity and full back wages.

7. It is not in dispute that the petitioner has not filed a written

statement opposing the complaint in these last 11 years.

8. The grievance of the petitioner is that considering the view

taken by the Apex Court in the case of Kalyani Steel and Cipla

Limited (supra) coupled with several other judgments of this Court,

the complaint is untenable in law and the complaint should be

dismissed since the petitioner has denied employer-employee

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relationship.

9. I am unable to accept the submissions of the petitioner though

the petitioner has placed before this Court a voluminous compilation

of judgments. The fact remains that in these proceedings, the

petitioner has not filed a written statement, has not set up a defence

against the complaint and the reliefs prayed in the complaint. Despite

directions of the Labour Court to produce certain documents, which

the employees contend to be a testimony of their working with the

petitioner, said documents have not been produced and kept away

from the Court.

10. Besides placing reliance upon Kalyani Steel and Cipla Limited

(supra), the petitioner places reliance upon the judgment of this

Court in the matter of Maharashtra Industrial Development

Corporation Vs. Member, Industrial Court and others, decided on

17/02/2006 and the judgment of this Court in the matter of

Kirloskar Mahle Filter Systems Ltd., Vs. Chandrakant Tukaram Ubhe

and others decided on 12/09/2007 to support its contention that

even if there is no contractor in the picture and even if the litigation

is between an establishment and a worker, the moment the petitioner

employer contends that the relationship is disputed, the complaint is

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rendered untenable.

11. The contentions of the petitioner are rendered fallacious in the

light of the observations of the Hon'ble Supreme Court in paragraph

No.5 of Kalyani Steel judgment (supra) and paragraph Nos. 8 and 9 of

the Cipla Judgment (supra), which read as under :-

"Paragraph No.5 of Kalyani Steel judgment :- The provisions of

MRTU and 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 and PULP Act.

Paragraph Nos. 8 and 9 of the Cipla Judgment :- 8. But one thing is clear

- if the employees are working under a 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

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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.

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

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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 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 the Act. 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 (supra), which view was reiterated by us in Vividh Kamgar Sabha v. Kalyani Steels Ltd. & Anr.,2001-I-LLJ-569 (SC)."

12. I cannot lose sight of the fact that the Hon'ble Apex Court in

the above stated 2 cases was dealing with a contractor being a

camouflage, lifting of the corporate veil and the repudiation of a

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contract in between the contract labourers and the contractor. In

these set of facts, the Hon'ble Apex Court ruled that even if the

contention is that the contractor was sham and bogus, the Labour

Court/Industrial Court cannot acquire jurisdiction since the

contractor will have to be eliminated and a relationship will have to

be developed between the principal employer and the contract

labourers, which can only be done by raising an industrial dispute

under an I.D.Act.

13. Even in the M.I.D.C. case (supra), paragraph No.6, 11 and 11-A

would indicate that the issue of a contractor and a principal employer

was being looked into. The employee was engaged on contractual

basis and having accepted a contract to perform the work of a driver,

this Court held that a claim for establishing a relationship with the

principal employer would not be maintained before the Labour Court.

14. In the Kirloskar Mahle Filter Systems Ltd.,case (supra), this

Court dealt with the contractors working as workmen and a prayer

that the contracts be declared as sham and bogus. Such facts are

missing in the instant case.

15. Reliance is then placed upon the judgment in the case of

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Maharashtra State Co.Op. Cotton Growers Mkt.Federation Ltd.,Vs.

Asha Joseph D'Mello, 2008(1) M.L.J. 750. Contention is that the

employees who were working on purely contractual basis and who

were disengaged after the conclusion of the contract, had claimed

permanency, which was granted. This Court interfered with the said

findings on the ground that when there was a contract between the

parties, they could not have been granted permanency. A reference is

made to the judgment in Kalyani Steel (supra) and Sarva Shramik

Sangh Vs.Indian Smelting and Refining Co.Ltd., and others and it is

concluded that the complaint was not maintainable.

16. I do not find that the said ratio would be of any assistance to

the petitioner considering the fact that neither a written statement

has been filed to set up a stand against the complaint, nor has the

petitioner produced the documents before the Labour court as were

directed, keeping in view that the said documents would establish

supervision and control by the petitioner over the employees.

17. In the light of the above, considering the fact that the Labour

Court has concluded by way of a finding on facts and the Industrial

Court has dismissed the revision petition and taking into account the

conduct of the petitioner in not producing the documents despite

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directions of the Labour Court which were sustained by the

Industrial Court, I do not find any merit in this petition. Same is,

therefore, dismissed. Rule is discharged.

( RAVINDRA V. GHUGE, J.)

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