Auto Cars 14 Km Stone Aurangabad ... vs Auto Cars Employees Union Through ...
2016 Latest Caselaw 6773 Bom

                                            1




                                                                              
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                      
                      WRIT PETITION NO.11758 OF 2016

    Auto Cars
    14 Km Stone, Aurangabad-Paithan Road,
    Near Videocon Industries, Chitegaon,




                                                     
    Aurangabad,
    Through Senior Manager -HR                             -- PETITIONER

    VERSUS 




                                           
    Auto Cars Employees Union,
    N-4, CIDCO, Aurangabad,   
    Through its President                                  -- RESPONDENT

WITH

WRIT PETITION NO.11759 OF 2016

Auto Cars 14 Km Stone, Aurangabad-Paithan Road, Near Videocon Industries, Chitegaon,

Aurangabad, Through Senior Manager -HR -- PETITIONER

VERSUS

Auto Cars Employees Union,

N-4, CIDCO, Aurangabad, Through its President -- RESPONDENT

Mr.V.P.Golewar h/f Mr.Ashok V.Patil and Mr.A.R.Joshi, Advocate for the petitioner.

Mr.T.K.Prabhakaran, 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.

khs/NOV.2016/11758-d

2. In both these matters, the petitioner/Management is aggrieved

by the order dated 14/10/2016 by which application Exhibit C-19

and C-21 in Complaint (ULP) Nos. 49/2014 and 160/2013 have been

rejected by the Industrial Court.

3. I have considered the strenuous submissions of the learned

Advocates for the respective sides and have gone through the petition

paper book with their assistance.

4. Both the complaints are to be decided within a time frame

pursuant to an earlier direction issued by this Court dated

18/03/2016 in WP Nos. 11360/2014 and 10738/2015. The

respondent / Union, which is the original complainant in both these

complaints, has already commenced the recording of its oral evidence

by filing affidavits in lieu of evidence before the Industrial Court.

5. At this juncture, two applications Exh.C-19 and C-21 have

been filed by the petitioner praying for framing of the following two

issues :-

"1. Does the complainant Union prove that, the employees listed in Annexure "A" are the "Workman" within the meaning of

khs/NOV.2016/11758-d

Sec.2(s) of Industrial Disputes Act, 1947 ?"

2. Does the complainant Union prove employer-employee

relationship between respondent and container drivers listed in Annexure "A" ?"

6. There is no dispute that the issue as regards whether the

complaint is maintainable, has already been framed by the Industrial

Court. It is equally undisputed that the petitioner has averred in the

written statement that some of the workers mentioned in the

annexure to the complaints are free lancers and that they are

independent contractors. Grievance is that the above mentioned two

issues are not cast.

7. Considering the pleadings of the litigating sides and the issues

cast, I do not find that the Industrial Court has erred in rejecting

application Exhibit C-19 and C-21.

8. It appears from these two petitions that the

petitioner/Management is under an apprehension that the issue as

to whether the complainants are free lancers, whether they are

independent contractors, whether they are workmen u/s 2(s) of the

I.D.Act r/w Section 3(5) of the 1971 Act, and whether there is

employer-employee relationship, would not be gone into by the

khs/NOV.2016/11758-d

Industrial Court.

9. It is apparent that the above said aspects have not been

specifically mentioned in the issue "Whether the complaint is

maintainable ?". However, I find that the apprehension of the

petitioner/Management is misplaced for the reason that the

Industrial Court, upon framing the issue, "Whether the complaint is

maintainable ?" would certainly look into the pleadings of the

litigating sides and then conclude on the basis of the answers to the

said pleadings as to whether the complaint is maintainable.

10. Suffice it to say, the contention of the petitioner that the

workers are free lancers, they are independent contractors, they are

not workmen and there is no employer-employee relationship, will

have to be proved by the petitioner/Management and the Industrial

Court would consider the said pleadings and the evidence, if

adduced, while deciding whether the complaints are maintainable.

11. With the above observations, both these petitions are disposed

of. Rule is discharged.

( RAVINDRA V. GHUGE, J.)

khs/NOV.2016/11758-d