Shaikh Khalil Khurshid And Ors vs Municipal Council Ausa Through ...
2018 Latest Caselaw 995 Bom

                                                                LPA No.270/2010
                                      (( 1 ))


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




            LETTERS PATENT APPEAL NO.270 OF 2010 IN
                 WRIT PETITION NO.7352 OF 2009
                             WITH
               CIVIL APPLICATION NO.9420 OF 2010



 1)       Shaikh Khalil Khurshid,
          Age 34 years, Occu. Nil,
          R/o Jamal Nagar, Ausa,
          Taluka Ausa, District Latur.

 2)       Sadik Aamir Shaikh,
          Age 38 years, Occu.Nil,
          R/o Indira Nagar, Ausa,
          Taluka Ausa, District Latur.

 3)       Ram s/o Gopinath Kamble,
          Age 38 years, Occu. Nil,
          R/o Dhangar Galli, Ausa,
          Taluka Ausa, District Latur.

 4)       Shahu s/o Rama Kamble,
          Age 37 years, Occu. Nil,
          R/o Mahatma Nagar, Ausa,
          Taluka Ausa, District Latur.

 5)       Pathan Moyoddinkha Samsherkha
          Age 40 years, Occu.Nil,
          R/o Kewalram Galli, Ausa,
          Taluka Ausa, District Latur.

 6)       Ekbal Abdulhamid Karpude,
          Age 37 years, Occu.Nil,
          R/o Momeen Galli, Ausa,
          Taluka Ausa, District Latur.

 7)       Ramkrishna s/o Shashikant Apsingekar,
          Age 35 years, Occu. Nil,
          R/o Kapad Galli, Ausa,
          Taluka Ausa, District Latur.



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                                                                    LPA No.270/2010
                                        (( 2 ))


 8)       Prabhakar s/o Goroba Kamble,
          Age 34 years, Occu. Nil,
          R/o Mukteshwar Road, Ausa,
          Taluka Ausa, District Latur.

 9)       Mahboob Rajjaq Tamboli,
          Age 44 years, Occu.Nil,
          R/o In front of Jain Mandir, Ausa,
          Taluka Ausa, District Latur.       ...   APPELLANTS
                                             (Original Complainants)
          VERSUS

 1)       The Municipal Council, Ausa
          Through its Chief Officer,
          Taluka Ausa, District Latur.

 2)       The State of Maharashtra
          through its Secretary,
          Department of Urban Development,
          Mantralaya, Mumbai - 32
          (Copy to be served on Government
          Pleader, High Court of Judicature
          of Bombay, Bench at Aurangabad) ...                RESPONDENTS


                                 .....
 Shri Santosh S. Jadhavar, Advocate for appellants
 Shri B.L. Sagar Killarikar, Advocate for respondent No.1
 Shri M.M. Nerlikar, A.G.P. For respondent No.2
                                 .....


                                CORAM:        T.V. NALAWADE AND
                                              SUNIL K. KOTWAL, JJ.

                                DATED:        25th January, 2018.


 JUDGMENT (PER SUNIL K. KOTWAL, J.) :

1. This Letters Patent Appeal is filed by original

complainants in U.L.P. No.31/2002 against the judgment and

order passed by learned Single Judge of this Court in Writ

LPA No.270/2010 (( 3 ))

Petition No.7352/2009.

2. Heard strenuous submissions of respective counsel

appearing for the parties. The appellants filed Complaint bearing

U.L.P. No.31/2002 making grievance in respect of commission of

unfair labour practices under Section 28(1) read with Item

No.1(a), (b), (d) & (f) of the Schedule IV of the Maharashtra

Recognition of Trade Unions & Prevention of Unfair Labour

Practices Act, 1971 (for the sake brevity, hereinafter referred as

MRTU & PULP Act). The complainants contended that, they used

to work with the respondent Municipal Council (hereinafter

referred as the 'employer') since last several years and engaged

in performing the essential services. According to complainants,

they have rendered an unblemished service. However, abruptly,

without any cause, their services have been terminated. Their

contention is that, they were appointed by employer as a daily

rated worker for a period of more than 240 years in a calendar

year. However, despite availability of work and without following

the due procedure prescribed by law, their services have been

terminated. The complainants, therefore, sought direction

against the employer, requiring them to desist from engaging in

an unfair labour practice and also sought relief of reinstatement

in the employment with continuity of service and back wages. By

filing written statement (Exh.C-2), the employer opposed the

LPA No.270/2010 (( 4 ))

complaint by specifically denying allegations leveled by the

complainants. The employer specifically denied the relationship

of employer and employee between the complainants and

employer. The employer contended that, the employees were

awarded contract for carrying out specific functions, when the

tender submitted by employees was accepted and work order

was issued for performing the prescribed job. According to

employer, the complainants are not employees engaged by the

Municipal Council.

3. Before the Labour Court, it was contended on behalf

of the employer that, when the relationship of employer and

employee itself is disputed, the Labour Court cannot adjudicate

upon the issue while entertaining the complaint under the MRTU

& PULP Act. The objection raised by the employer was turned

down by the Labour Court and the complaint filed by the

employees was allowed by the Labour Court by passing order

dated 27.1.2009. The Labour Court issued an order restraining

the employer from indulging in an unfair labour practice and also

further directed to desist from practicing any such unfair labour

practice. The complainants were directed to be reinstated with

continuity of service, however, without back wages.

4. The Revision Application preferred by the employer

LPA No.270/2010 (( 5 ))

bearing No.ULP No.5/2009 was dismissed by the Industrial Court

vide order dated 23.9.2009.

5. Learned counsel appearing for the appellants

submitted that, the learned Single Judge erroneously relied on

the ratio of CIPLA's case and Sarva Shramik Sangh's case though

there was no written contract in between the employer and

employees. Learned Advocate for the appellant submitted that,

initially the appellants have accepted the work on contract basis

in response to tender invited by the employer Municipal Council.

Under that contract, the employees have accepted to perform

specified functions for the employer. He submits that, though

initial entry in the employment was on the basis of the terms of

the contract, the same was for limited duration and after

completion of said period covered by tender notice, the

employees were continued in service and they were treated as

employees of the Council. They were paid the wages by the

Municipal Council and notices were issued by Chief Officer in

respect of performance of work and, therefore, more than

sufficient material was available before the Labour Court to show

that the relations in between appellants and respondent were of

employees and employer.

6. Learned Advocate for respondent employer submits

LPA No.270/2010 (( 6 ))

that, when the employer has specifically denied the relationship

with alleged employees, the dispute so raised has to be

adjudicated under the provisions of the Industrial Disputes Act

and not by the Labour Court under MRTU & PULP Act.

7. While allowing the Writ Petition, the learned Single

Judge has placed reliance on CIPLA Ltd. Vs. Maharashtra

General Kamgar Union & others, reported in AIR 2001 SC

1165. The relevant para Nos.8 and 9 of the judgment in CIPLA's

case are reproduced as under :

"8. But one thing is clear - if the employees are working under a contract covered by the Contract Labour (Regulation and 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 the appropriate industrial tribunal or labour Court. Such question cannot be examined by labour Court or the industrial Court constituted under the Act. The object of the enactment is, amongst other aspects, enforcing provisions relating to unfair

LPA No.270/2010 (( 7 ))

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 enquired 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 I.D. Act."

9. "Shri K.K. Singhvi, 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,

LPA No.270/2010 (( 8 ))

whether a workman 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 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 recognized 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 Vs. Ahmedabad Mfg. and Calico Printing Co. Ltd. (1958 Supp (1) SCC 175 ) (supra) which view was iterated by us in Vividh Kamgar Sabha Vs. Kalyani Steels Ltd. 2001(1) SCALE 82 : (2001 AIR SCW 170). "

LPA No.270/2010 (( 9 ))

8. It is to be noted that, the law settled by the Hon'ble

Apex Court in CIPLA's case was also approved by the Hon'ble

Apex Court in the matter of Sarva Shramik Sangh Vs. Indian

Smelting & Refining Co. Ltd. reported in 2003 Law Suit (SC)

1036.

9. After going through the above cases and the

judgment of the learned Single Judge, the trite law is absolutely

clear, when the relation in between employer and employee is in

dispute, the same cannot be adjudicated by Labour Court while

dealing with the complaint under MRTU & PULP Act. The

contentions of the employees that, contract itself is camouflage

and, therefore, needs to be adjudicated, is a matter which can be

gone into by appropriate Industrial Tribunal. Such

questions cannot be examined by Labour Court or Industrial

Court under the MRTU & PULP Act. However, the Labour Court

as well as the Industrial Court assumed jurisdiction and

proceeded to decide the matter. In view of this situation and

above discussed trite law, we do not find any error of law

committed by learned Single Judge while allowing the Writ

Petition and setting aside the judgment and order passed by the

Labour Court, dated 27.1.2009 as well as the judgment and

order passed by Industrial Court dated 23.9.2009. It would be

LPA No.270/2010 (( 10 ))

open for the appellants - employees to present appropriate

proceedings before the appropriate forum for acquiring

appropriate relief.

10. In the result, the Letters Patent Appeal being devoid

of merits, deserves to be dismissed. Hence, the following order :

ORDER

(i) Letters Patent Appeal No.270/2010 is dismissed.

(ii) The appellants are at liberty to file appropriate

proceedings before the appropriate forum within

three months from the date of the present decision

and if it is filed within that period, the forum is

expected to dispose of the matter within six months

thereafter.

(iii) In view of dismissal of the Letters Patent Appeal, Civil

Application is disposed of.

        (iv)       No order as to costs.




          ( SUNIL K. KOTWAL )                        ( T.V. NALAWADE )
               JUDGE                                        JUDGE



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